S. Hrg. 103-1031, Pt. 5
CONFIRMATION HEARINGS
ON FEDERAL APPOINTMENTS
HEARINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
SECOND SESSION
ON
CONFIRMATION OF APPOINTEES TO THE FEDERAL JUDICIARY
AUGUST 17, 18, 25; SEPTEMBER 14 AND 21, 1994
Part 5
Serial No. J-103-28
Printed for the use of the Committee on the Judiciary
U.!
JUN I 2 1996
DEPOSITORY DOCUMENT
/0643-A
S. HRG. 103-1031, Pt. 5
CONFIRMATION HEARINGS
ON FEDERAL APPOINTMENTS
HEARINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
SECOND SESSION
ON
CONFIRMATION OF APPOINTEES TO THE FEDERAL JUDICIARY
AUGUST 17, 18, 25; SEPTEMBER 14 AND 21, 1994
Part 5
Serial No. J-103-28
Printed for the use of the Committee on the Judiciary
rm£PST0N PUBLIC LIBRARY
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COMMITTEE ON THE JUDICIARY
JOSEPH R, BIDEN, Jr., Delaware, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
HOWARD M. METZENBAUM, Ohio STROM THURMOND, South Carolina
DENNIS DeCONCINI, Arizona ALAN K. SIMPSON, Wyoming
PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa
HOWELL HEFLIN, Alabama ARLEN SPECTER, Pennsylvania
PAUL SIMON, Illinois HANK BROWN, Colorado
HERBERT KOHL, Wisconsin WILLIAM S. COHEN, Maine
DIANNE FEINSTEIN, California LARRY PRESSLER, South Dakota
CAROL MOSELEY-BRAUN, Illinois
Cynthia C. Hooan, Chief Counsel
Catherine M. Russell, Staff Director
Mark R. Disler, Minority Staff Director
Sharon Prost, Minority Chief Counsel
(ID
-
CONTENTS
HEARING DATES
Page
Wednesday, August 17, 1994 1
Thursday, August 18, 1994, 9:36 a.m 215
Thursday, August 18, 1994, 10:04 a.m 371
Thursday, August 25, 1994 473
Wednesday, September 14, 1994 597
Wednesday, September 21, 1994 867
WEDNESDAY, AUGUST 17, 1994
Statements of Committee Members
DeConcini, Hon. Dennis 1
Specter, Hon. Arlen 17
Introduction of Nominees
Johnston, Hon. J. Bennett 1
Prepared statement 3
Jefferson, Hon. William J. (prepared statement) 2
Breaux, Hon. John B 3
Sarbanes, Hon. Paul S 4
Morella, Hon. Constance A 5
Kennedy, Hon. Edward M. (prepared statement) 6
Romero-Barcelo, Hon. Carlos A 7
Testimony of Nominees
E. Casellas, Guaynabo, PR, to be U.S. District Judge for the District of
Puerto Rico 9
Questioning by:
Senator Simon 11
Senator DeConcini 14, 21
Daniel R. Dominguez, Rio Piedras, PR, to be U.S. District Judge for the
District of Puerto Rico 9
Questioning by:
Senator Simon 10
Senator DeConcini 14, 21
Sarah S. Vance, New Orleans, LA, to be U.S. District Judge for the Eastern
District of Louisiana 13
Questioning by:
Senator DeConcini 13, 21
William C. Bryson, Bethesda, MD, to be U.S. Circuit Judge for the Federal
Circuit 13
Questioning by:
Senator DeConcini 13, 21
Senator Grassley 18
Alphabetical List and Material Submitted
Bryson, William C:
Testimony 13
Questionnaire 175
(III)
IV
Page
Casellas, Salvador E.:
Testimony 9
Questionnaire 23
Dominguez, Daniel R.:
Testimony 9
Questionnaire 61
Audited financial statement (in Spanish) 91
Specter, Hon. Arlen:
Letter from Michael M. Baylson, of Duane, Morris & Heckscher, attor-
neys at law, Philadelphia, PA, Aug. 15, 1994 (with attachment) 212
Vance, Sarah S.:
Testimony 13
Questionnaire 100
THURSDAY, AUGUST 18, 1994, 9:36 A.M.
Statements of Committee Members
Leahy, Hon. Patrick J 215
Hatch, Hon. Orrin G 222
Introduction of Nominee
Norton, Hon. Eleanor Holmes 216
Testimony of Nominee
Lois J. Schiffer, Washington, DC, to be Assistant Attorney General, Environ-
ment and Natural Resources Division, U.S. Department of Justice 217
Questioning by:
Senator Leahy 218
Senator Hatch 223
Alphabetical List and Material Submitted
Leahy, Hon. Patrick J.:
Letters to Senator Patrick J. Leahy, Committee on the Judiciary, Wash-
ington, DC, from:
Susan S. Rai, attorney at law, New York, NY, Feb. 10, 1994 290
Patrick A. Parenteau, director, Environmental Law Center, Vermont
Law School, Feb. 15, 1994 291
Douglas M. Costle, Woodstock, VT, Feb. 16, 1994 292
Mollie H. Beattie, director, U.S. Department of the Interior, Wash-
ington, DC, Feb. 28, 1994 293
Letters to Chairman Joseph R. Biden, Jr., Committee on the Judiciary,
Washington, DC, from:
Nan Aron, executive director, Alliance for Justice (and 15 cosigners),
July 1, 1994 294
G. Jon Roush, president, The Wilderness Society, Washington, DC,
July 14, 1994 297
Richard J. Lazarus, professor of law, Washington University, St.
Louis, MO, Aug. 3, 1994 298
James W. Moorman, of Cadwalader, Wickersham & Taft, Washing-
ton, DC, Aug. 5, 1994 300
William J. Roberts, legislative director, Environmental Defense Fund,
Washington, DC, Aug. 5, 1994 301
Carol E. Dinkins, of Vinson & Elkins L.L.P., attorneys at law, Wash-
ington, DC, Aug. 5, 1994 302
Statement of Bruce d. Terris, partner, Terris, Pravlik & Wagner, Wash-
ington, DC, Aug. 18, 1994 303
Attachments:
Resume of environmental, preservation, land-use, and zoning
matters handled by Terris, Pravlik & Wagner, March 1993 309
V
Page
Leahy, Hon. Patrick J. — Continued
Statement of Bruce J. Terris, partner, Terris, Pravlik & Wagner, Wash-
ington, DC, Aug. 18, 1994— Continued
Attachments— Continued
Letters to Lois Schiffer, Assistant Attorney General, Environ-
ment and Natural Resources Division, Department of Justice,
Washington, DC, from Terris, Pravlik & Wagner, Washington,
DC:
Dec. 3, 1993 336
Oct. 27, 1993 341
Letter to Susan Lipow, Associate General Counsel, Water Divi-
sion, Office of General Counsel, Environmental Protection
Agency, Washington, DC, from P. Douglas Sisk, clerk, U.S.
Court of Appeals for the Third Circuit, Philadelphia, PA, June
13, 1994 344
Letter to P. Douglas Sisk, clerk, U.S. Court of Appeals for the
Third Circuit, Philadelphia, PA, from Peter R. Steenland, Jr.,
Chief, Appellate Section, Environment and Natural Resources
Division, Department of Justice, Washington, DC, June 27,
1994 345
Brief for the United States as amicus curiae, filed in the U.S.
Court of Appeals for the Third Circuit, Nos. 93-5720 and 93-
5721, July 1994 347
Schiffer, Lois J.:
Testimony 217
Questionnaire 232
THURSDAY, AUGUST 18, 1994, 10:04 A.M.
Statement of Committee Member
Moseley-Braun, Hon. Carol 371
Introduction of Nominees
Norton, Hon. Eleanor Holmes 372
D'Amato, Hon. Alfonse M 373
Markey, Hon. Edward J 389
Testimony of Nominees
Laurie O. Robinson, Washington, DC, to be Assistant Attorney General, Office
of Justice Programs 375
Questioning by:
Senator Simpson 376
Senator Moseley-Braun 377
Nancy E. Gist, Boston, MA, to be Director of the Bureau of Justice Assist-
ance 381
Questioning by:
Senator Simpson 381
Senator Moseley-Braun 384
Jan M. Chaiken, Lincoln, MA, to be Director of the Bureau of Justice Statis-
tics 386
Questioning by:
Senator Simpson 386
Senator Moseley-Braun 387
Jeremy Travis, New York, NY, to be Director of the National Institute of
Justice 391
Questioning by:
Senator Simpson 391
Senator Moseley-Braun 394
Alphabetical List and Material Submitted
Robinson, Laurie O.:
Testimony 375
Prepared statement 380
VI
Page
Robinson, Laurie O. — Continued
Questionnaire 396
Gist, Nancy E.:
Testimony 381
Questionnaire 426
Chaiken, Jan M.:
Testimony 386
Questionnaire 441
Travis, Jeremy:
Testimony 391
Questionnaire 456
THURSDAY, AUGUST 25, 1994
Statement of Committee Member
Kohl, Hon. Herbert 473
Introduction of Nominees
Breaux, Hon. John B 473
Johnston, Hon. J. Bennett (prepared statement) 474
Tauzin, Hon. W.J. (Billy) 475
Prepared statement 477
Moynihan, Hon. Daniel Patrick 478
D'Amato, Hon. Alfonse M. (prepared statement) 479
Boxer, Hon. Barbara 484
Testimony of Nominees
Stanwood R. Duval, Jr., Houma, LA, to be U.S. District Judge for the Eastern
District of Louisiana 479
Questioning by: fe
Senator Kohl .7. 480
John Gleeson, Brooklyn, NY, to be U.S. District Judge for the Eastern District
of New York 482
Questioning by:
Senator Kohl 482
R. Samuel Paz, Alhambra, CA, to be U.S. District Judge for the Central
District of California 485
Questioning by:
Senator Kohl 486
Alphabetical List and Material Submitted
Duval, Stanwood R., Jr.:
Testimony 479
Questionnaire 489
Gleeson, John:
Testimony 482
Questionnaire 548
Paz, R. Samuel:
Testimony 485
Questionnaire 576
WEDNESDAY, SEPTEMBER 14, 1994
Statement of Committee Member
Heflin, Hon. Howell 597
Introduction of Nominees
Johnston, Hon. J. Bennett 597
Prepared statement 598
Dodd, Hon. Christopher J 598
Prepared statement 599
VII
Page
Lieberman, Hon. Joseph I 600
Breaux, Hon. John B 603
Moynihan, Hon. Daniel Patrick 607
Prepared statement introducing Frederic Block 608
Prepared statement introducing Allyne Ronna Ross 609
Prepared statement introducing Shira A. Scheindlin 609
Testimony of Nominees
Allyne R. Ross, of Scarsdale, NY, to be U.S. District Judge for the Eastern
District of New York; Shira A. Scheindlin, of Brooklyn, NY, to be U.S.
District Judge for the Southern District of New York; Dominic J. Squatrito,
of Manchester, CT, to be U.S. District Judge for the District of Connecticut;
Robert N. Chatigny, of Bloomfield, CT, to be U.S. District Judge for the
District of Connecticut; and Frederic Block, of Port Jefferon, NY, to be
U.S. District Judge for the Eastern District of New York 605
Questioning by:
Senator Heflin 605
James L. Dennis, of New Orleans, LA, to be U.S. Circuit Judge for the
Fifth Circuit 611
Questioning by:
Senator Heflin 611
Alphabetical List and Material Submitted
Block, Frederic:
Testimony 605
Questionnaire 773
Chatigny, Robert N.:
Testimony 605
Questionnaire 725
Dennis, James L.:
Testimony 611
Questionnaire 827
Ross, Allyne R.:
Testimony 605
Questionnaire 613
Scheindlin, Shira A.:
Testimony 605
Questionnaire 646
Squatrito, Dominic J.:
Testimony 605
Questionnaire 688
WEDNESDAY, SEPTEMBER 21, 1994
Statement of Committee Member
Simon, Hon. Paul 867
Introduction of Nominees
Mikulski, Hon. Barbara A 867
Prepared statement 868
Bond, Hon. Christopher S 869
Danforth, Hon. John C. (prepared statement) 870
Lugar, Hon. Richard G 871
Jacobs, Hon. Andrew, Jr 872
Wofford, Hon. Harris 873
Specter, Hon. Arlen 873
Sarbanes, Hon. Paul S 874
Morella, Hon. Constance A 876
Warner, Hon. John W 876
Prepared statement 877
Gephardt, Hon. Richard A 877
Prepared statement 878
Durbin, Hon. Richard J 879
VIII
Page
Coats, Hon. Dan (prepared statement) 880
Moseley-Braun, Hon. Carol 882
Prepared statement 887
Testimony of Nominees
David S. Tatel, Chevy Chase, MD, to be U.S. Circuit Judge for the District
of Columbia Circuit 880
Questioning by:
Senator Simon 881
David H. Coar, Chicago, IL, to be U.S. District Judge for the Northern
District of Illinois 883
Questioning by:
Senator Simon 883
Senator Mosely-Braun 884
Paul E. Riley, Edwardsville, IL, to be U.S. District Judge for the Southern
District of Illinois 885
Questioning by:
Senator Simon 885
Senator Mosely-Braun 886
Robert J. Cindrich, Pittsburgh, PA, to be U.S. District Judge for the Western
District of Pennsylvania 888
Questioning by:
Senator Simon 888
Catherine D. Perry, St. Louis, MO, to be U.S. District Judge for the Eastern
District of Missouri 890
Questioning by:
Senator Simon 890
David F. Hamilton, Zionsville, IN, to be U.S. District Judge for the Southern
District of Indiana 892
Questioning by:
Senator Simon 893
Witnesses
Robert P. Watkins, immediate past chair, Standing Committee on Federal
Judiciary, American Bar Association, accompanied by William E. Willis,
chair, Standing Committee on Federal Judiciary, American Bar Association 895
Questioning hy:
Senator Simon 898
Alphabetical List and Material Submitted
Cindrich, Robert J.:
Testimony 888
Questionnaire 1059
Coar, David H.:
Testimony 883
Questionnaire 1003
Hamilton, David F.:
Testimony 892
Questionnaire 1127
Perry, Catherine D.:
Testimony 890
Questionnaire 1098
Riley, Paul E.:
Testimony 885
Questionnaire 1032
Tatel, David S.:
Testimony 880
Questionnaire 902
Watkins, Robert P.:
Testimony 895
Prepared statement 900
Willis, William E.:
Testimony 895
Prepared statement 899
IX
Page
ALPHABETICAL LIST OF NOMINEES FOR FEDERAL APPOINTMENTS
Block, Frederic, of Port Jefteron, NY, to be U.S. District Judge for the Eastern
District of New York 605
Bryson, William C, Bethesda, MD, to be U.S. Circuit Judge for the for
file Federal Circuit 13
Casellas, E., Guaynabo, PR, to be U.S. District Judge for the District of
Puerto Rico 9
Chaiken, Jan M., Lincoln, MA, to be Director of the Bureau of Justice Statis-
tics 386
Chatigny, Robert N, of Bloomfield, CT, to be U.S. District Judge for the
District of Connecticut 605
Cindrich, Robert J., Pittsburgh, PA, to be U.S. District Judge for the Western
District of Pennsylvania 888
Coar, David H., Chicago, IL, to be U.S. District Judge for the Northern
District of Illinois 883
Dennis, James L., of New Orleans, LA, to be U.S. Circuit Judge for the
Fifth Circuit 611
Dominguez, Daniel R., Rio Piedras, PR, to be U.S. District Judge for the
District of Puerto Rico 9
Duval, Stanwood R., Jr., Houma, LA, to be U.S. District Judge for the East-
ern District of Louisiana 479
Gist, Nancy E., Boston, MA, to be Director of the Bureau of Justice Assist-
ance 381
Gleeson, John, Brooklyn, NY, to be U.S. District Judge for the Eastern
District of New York 482
Hamilton, David F., Zionsville, IN, to be U.S. District Judge for the Southern
District of Indiana 892
Paz, R. Samuel, Alhambra, CA, to be U.S. District Judge for the Central
District of California 485
Perry, Catherine D., St. Louis, MO, to be U.S. District Judge for the Eastern
District of Missouri 890
Riley, Paul E., Edwardsville, IL, to be U.S. District Judge for the Southern
District of Illinois 885
Robinson, Laurie O., Washington, DC, to be Assistant Attorney General,
Office of Justice Programs 375
Ross, Allyne R., of Scarsdale, NY, to be U.S. District Judge for the Eastern
District of New York 605
Scheindlin, Shira A, of Brooklyn, NY, to be U.S. District Judge for the
Southern District of New York 605
Schiffer, Lois J., Washington, DC, to be Assistant Attorney General, Environ-
ment and Natural Resources Division, U.S. Department of Justice 217
Squatrito, Dominic J., of Manchester, CT, to be U.S. District Judge for the
District of Connecticut 605
Tatel, David S., Chevy Chase, MD, to be U.S. Circuit Judge for the District
of Columbia Circuit 880
Travis, Jeremy, New York, NY, to be Director of the National Institute
of Justice 391
Vance, Sarah S., New Orleans, LA, to be U.S. District Judge for the Eastern
District of Louisiana 13
NOMINATIONS OF SALVADOR E. CASELLAS,
DANIEL R. DOMINGUEZ, SARAH S. VANCE,
TO BE U.S. DISTRICT JUDGES; AND WIL-
LIAM C. BRYSON, TO BE U.S. CIRCUIT
JUDGE
WEDNESDAY, AUGUST 17, 1994
United States Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 2:08 p.m., in room
SD-226, Dirksen Senate Office Building, Hon. Dennis DeConcini
presiding.
Also present: Senators Simon, Grassley, and Specter.
OPENING STATEMENT OF SENATOR DeCONCINI
Senator DeConcini. The Senate Judiciary Committee will come
to order. This afternoon, we will conduct a hearing on four nomi-
nees, one for a position on the circuit court and three for Federal
district courts. As is customary, the nominees will be introduced to
the committee by their Senators or Representatives from their re-
spective homes States.
Prior to hearing from the members who are present today, I
want to state for the record that each nominee has completed a de-
tailed questionnaire, and the public portions of the questionnaires
will be printed in the record of this hearing.
Furthermore, the record will be kept open for a limited time in
the event that any other written testimony is offered or the other
members wish to submit written questions.
The nominees will be introduced in the following order. We will
first take Ms. Sarah Vance from New Orleans, to be U.S. district
judge for the eastern district of Louisiana. We are pleased to have
Senators Bennett Johnston and John Breaux here to introduce her.
Senator Johnston, you may proceed.
STATEMENT OF HON. J. BENNETT JOHNSTON, A U.S. SENATOR
FROM THE STATE OF LOUISIANA
Senator Johnston. Thank you very much, Mr. Chairman. First,
I would like to put in the statement of Congressman William Jef-
ferson, who is voting right now.
Senator DeConcini. It will be included.
[The prepared statement of Mr. Jefferson follows:]
(l)
Prepared Statement of Hon. William Jefferson, a Representative in
Congress from the State of Louisiana
Good afternoon, Mr. Chairman and members of the committee. I am honored and
pleased to be here today with Senators Johnston and Breaux in presenting Sarah
S. Vance to this committee. I believe that Sarah Vance will be an excellent addition
to the U.S. District Court for the Eastern District and I applaud President Clinton
for nominating her.
I believe that Sarah Vance will serve in the tradition of some of the outstanding
jurists that have served on the district court in New Orleans.
Sarah Vance brings a wealth of trial experience and an outstanding educational
background to the court. Sarah has made it a practice of excelling in her educational
endeavors by finishing first in her class at Louisiana State University and at Tulane
University School of Law. She has also excelled in her legal practice.
Sarah has developed a broad legal practice at the New Orleans law firm of Stone,
Pigman, Walther, Wittman & Hutchinson in the areas of commercial litigation, anti-
trust, banking, securities, and white collar criminal defense. These are complex
areas of law that are a major part of the Eastern District Court's caseload.
Sarah has also written extensively and has participated in many symposiums in
these areas.
Mr. Chairman, Sarah Vance has a well earned reputation for competency and in-
tegrity in our legal community, and I feel certain that she will distinguish herself
as a scholar on the bench.
For these reasons, I strongly urge this committee to recommend Sarah Vance to
the full Senate for confirmation to the U.S. District Court for the Eastern District
of Louisiana.
Mr. Chairman, I appreciate the opportunity to appear before your committee this
afternoon.
Thank you.
Senator Johnston. Second, I would like to introduce to the com-
mittee Sarah Vance's husband, Pat Vance, and her son, Robert. Pat
is himself an outstanding attorney in New Orleans.
Mr. Chairman and Senator Simon, we always like to think from
Louisiana we give you good nominees, but we know we have not
only a good nominee, but one that is truly outstanding. Just to give
you a quick idea of how outstanding Sarah Vance is, she graduated
first in her class from Ascension Catholic High School in Donald-
sonville. She graduated first in her class from LSU, 1 out of 1,700
graduates. She graduated first in her class from Tulane Law
School, 1 out of 186 graduates.
At Tulane, she was managing editor of the law review and a
member of the Order of the Coif. She was the first woman partner
in the outstanding New Orleans law firm of Stone, Pigman. She
has a very diverse background in antitrust, officer liability, securi-
ties, professional malpractice, commercial litigation, white collar
crime defense work.
She is a member of the Antitrust Section of the American Bar
Association. She is the chairman of the Antitrust and Trade Regu-
lation Section of the Louisiana Bar Association. I could go on with
the list of publications and the outstanding cases she has handled,
but suffice it to say, Mr. Chairman, that she is at the very pinnacle
of the Louisiana bar.
I want to say it is rare to get someone of her outstanding ability
on the bench, but it is certainly not a usual occurrence that some-
one who is in the top of every category we have the pleasure of
nominating. So it is with great pleasure that I submit to this panel
Sarah Vance to be district judge.
[The prepared statement of Senator Johnston follows:]
Prepared Statement of Senator J. Bennett Johnston
Mr. Chairman and members of the committee, I am very pleased to appear before
the committee today for the purpose of introducing to you Sarah S. Vance, of New
Orleans, Louisiana, nominee to the United States District Court for the Eastern
District of Louisiana.
It is most fitting that an individual of Ms. Vance's high standards and eminent
qualifications be nominated for this very important position.
Sarah Vance comes to the committee with impressive credentials, having served
since 1978 as an associate and the first female partner in the law firm of Stone,
Pigman, Walther, Wittman & Hutchinson. Ms. Vance graduated first in her class
from the Tulane University School of Law in 1978, after graduating first in her class
of more than 1,700 students at Louisiana State University in 1971. The honors she
received while attending Tulane Law School are too numerous to list here, but they
include the Order of the Coif, the Gertler Award for best case note in the Tulane
Law Review, and managing editor of the Law Review.
Ms. Vance has a distinguished career in law and public service.
Among the professional organizations to which Ms. Vance holds membership are
the American, Louisiana State, New Orleans, and Federal Bar Associations; the Na-
tional Association of Health Lawyers; and the Tulane Law School Fellows.
Ms. Vance is an experienced litigator whose areas of practice include commercial
litigation, antitrust, white collar criminal defense, and professional malpractice.
She has lectured for the Louisiana Bar Association, the Federal Bar Association,
Tulane Law School, and the American Bar Association, and has been published in
the Louisiana Law Journal, Loyola Law Review, and Tulane Law Review.
Sarah Vance is married to R. Patrick Vance. They have one son, Robert Patrick
Vance, Jr.
I have known Sarah Vance for several years and found her to be very professional
and competent as a lawyer and community leader. Moreover, I am confident she
possesses the necessary judicial temperament to serve on the United States District
Court for the Eastern District of Louisiana.
In sum, I believe that Ms. Vance possesses the integrity, appropriate demeanor
and aptitude for legal scholarship that will enable her to serve well and with dis-
tinction if she is confirmed.
Mr. Chairman, Sarah S. Vance is imminently qualified to serve as a Judge to the
United States District Court for the Eastern District of Louisiana and I strongly
urge the committee act favorably on her nomination.
Senator DeConcini. Thank you, Senator Johnston. Having sat on
this committee a number of years and witnessed the outstanding
nominees that you and your colleagues have recommended to the
President and eventually this committee, this certainly stands out
as another example of the fine lawyers in your State. So we are
pleased to receive your recommendation.
Senator Breaux.
STATEMENT OF HON. JOHN B. BREAUX, A U.S. SENATOR FROM
THE STATE OF LOUISIANA
Senator Breaux. Thank you, Mr. Chairman, and Senator Simon
as well for being here this afternoon. I would echo everything that
Bennett has said about Sarah Vance's nomination to the Federal
district court in the New Orleans area.
From a standpoint of qualifications and knowledge and under-
standing of the law, it is very rare, I think, whenever you have a
person who has always finished first. I mean, I remember when I
was in law school if I could get anyone in the top 10 percent just
to talk to me, I thought it was pretty good. [Laughter.]
I felt I was fortunate. I think this country is fortunate to have
this type of person be willing to leave a very lucrative private prac-
tice and to make the sacrifice to enter into the Federal judiciary
at such an early age. It is, I think, encouraging that people like
Sarah Vance are willing to make that economic and personal sac-
rifice with a young family and a husband, who also is in the prac-
tice of law. I think we indeed are very, very fortunate to have this
type of person.
As Bennett has said, the practice that she has engaged in has
been across the board. In addition to the educational background
that she brings to this position, she also brings years of experience
in the day-to-day workings of what a judge has to do to be a great
judge, and I predict she will be a great judge and unequivocally
recommend her for your favorable consideration.
Senator DeConcini. Thank you, Senator Breaux. I appreciate
those comments and the fine recommendation that both you and
Senator Johnston give to Ms. Vance. We will question her in a lit-
tle bit and have her make an opening statement. We appreciate
your comments very much.
We will now turn to the introduction of William C. Bryson, of Be-
thesda, MD.
Senator Sarbanes, if you would come forward.
STATEMENT OF HON. PAUL S. SARBANES, A U.S. SENATOR
FROM THE STATE OF MARYLAND
Senator Sarbanes. Senator DeConcini and Senator Simon, I am
very pleased to be here this afternoon to introduce William C.
Bryson, a distinguished resident of Maryland who has been nomi-
nated by the President to serve as a U.S. circuit judge for the Fed-
eral Circuit. Bill is sitting right here behind me.
I must say he brings an extraordinary record before this commit-
tee, a graduate of Harvard College, magna cum laude, in 1969, and
from the University of Texas Law School in 1973, where he was
editor-in-chief of the Texas Law Review.
After he graduated from the University of Texas Law School, he
clerked first for Judge Henry Friendly, one of our Nation's most
distinguished jurists, in the second circuit, and then was law clerk
for Justice Thurgood Marshall on the Supreme Court.
Bill Bryson then went into practice here in Washington for 3
years where he did civil and criminal litigation, mainly Federal, at
the trial and appellate levels. Since 1978 — in other words, for the
last 15, 16 years — he has been in the Department of Justice in in-
creasingly more senior and responsible positions.
He started as assistant to the Solicitor General. He then became
chief of the Appellate Section in the Criminal Division. He then
was Special Counsel to the Organized Crime and Racketeering Sec-
tion of the Criminal Division; that was from 1982 to 1986.
From 1986 to the present, he has been in the Solicitor General's
office. He was a Deputy Solicitor General, one of four deputies to
the Solicitor General responsible for supervising and briefing and
the argument of cases before the Supreme Court. He twice has
been the Acting Solicitor General. In between the resignation of
one Solicitor General and the appointment of another, he served as
the Acting Solicitor General. Until just a few weeks ago, he was
Acting Associate Attorney General following the resignation of
Webster Hubbell.
So he has, in effect, given a career of dedicated public service in
the Justice Department, and he has been recognized at every step
along the way and I just want to mention two or three of these rec-
ognitions.
In 1984, the Federal Bar Association gave him the Tom C. Clark
Award. It is awarded annually to a Federal agency lawyer for out-
standing service as a government lawyer. In 1985, he received the
Department of Justice Exceptional Service Award, the highest
award in the Department of Justice. It is given annually to the
Justice Department attorney who has rendered the most excep-
tional service. In 1990, he was the first recipient of the Beatrice
Rosenberg Award, which is awarded annually by the District of Co-
lumbia bar for outstanding service as a government attorney.
He has had an extraordinary record. It is one of very distin-
guished public service. I think this appointment is very well mer-
ited. He will be an outstanding member of the Federal circuit, and
I commend him to the committee most strongly and urge your fa-
vorable recommendation. I look forward to his early confirmation
by the Senate.
Senator DeConcini. Thank you, Senator Sarbanes. We appre-
ciate your taking the time to introduce Mr. Bryson and your strong,
strong recommendation.
We are pleased to have Representative Morella here on behalf of
the nominee as well.
Representative.
STATEMENT OF HON. CONSTANCE A. MORELLA, A REPRE-
SENTATIVE IN CONGRESS FROM THE STATE OF MARYLAND
Representative Morella. Thank you. It is nice to be here with
Senator Sarbanes. Mr. Chairman, it is great to be here with this
distinguished committee. I am very honored to introduce to the
committee this afternoon my constituent, William Curtis Bryson,
who has been nominated to serve as a circuit judge on the U.S.
Court of Appeals for the Federal circuit.
It is always a great pleasure to introduce a constituent to this
committee who has been nominated, but this is a particular honor
because this gentleman is just so highly, highly qualified. A review
of Mr. Bry son's impeccable academic credentials and his profes-
sional record indicates that he has more than just the intellectual
acumen required of a judge. He also has the experience, the tem-
perament, the commitment, and the integrity to make him an out-
standing judge. He will be a bright star in the judicial galaxy.
Mr. Chairman and members of the committee, I know that you
all know Mr. Bryson from his current position as the Deputy Solici-
tor General, having been Acting Solicitor General, and as the Act-
ing Associate Attorney General with the U.S. Department of Jus-
tice— such prestigious, responsible positions.
Prior to his arrival at the Department of Justice in 1978, Mr.
Bryson was in private practice here in Washington and has served
as a law clerk for both former Supreme Court Justice Thurgood
Marshall and former Judge Henry Friendly of the Second Circuit
Court of Appeals.
When at the Department of Justice, and while receiving his edu-
cation at both Harvard College and the University of Texas School
of Law, where, incidentally, he was editor-in-chief of the law re-
view, and, at Harvard, magna cum laude, Mr. Bryson has been the
recipient of many awards and honors.
As a lawyer at the Department of Justice, he has very effectively
represented the government, has argued before the Supreme Court
on 31 occasions, and has second-chaired arguments on more than
100 occasions. In addition, Mr. Bryson has an active record in pro
bono work. Even with the Department of Justice, he has attempted
to serve the interests of the disadvantaged in a number of ways,
especially relating to employment discrimination.
So, Mr. Chairman and members of this distinguished committee,
I am very pleased to present to you a very highly qualified can-
didate for the Federal Circuit Court of Appeals. I certainly respect-
fully urge this committee to give its support to Mr. Bryson's nomi-
nation.
I am pleased to present to you William Curtis Bryson, and I
would like to end with a quote that I think aptly describes him
from Shakespeare: a man of sovereign parts, he is esteemed, well-
fitted in arms, glorious in arts. Nothing becomes him ill that he
would well. I believe he will serve us and the administration of jus-
tice very well.
Thank you.
Senator DeConcini. Representative Morella, thank you very
much for visiting with us and coming over here and offering your
strong recommendation for Mr. Bryson. I am sure it will be influen-
tial with the committee.
Representative Morella. Thank you.
Senator DeConcini. We will now proceed with Representative
Carlos Romero-Barcelo — I refer to him as Governor because that is
how I knew him when I first worked with him many years ago —
to introduce Salvador Casellas, who will be nominated as U.S. dis-
trict judge for the District of Puerto Rico, and Daniel R.
Dominguez, also for U.S. district judge for Puerto Rico.
Before you start, Representative, I have a statement on behalf of
Senator Kennedy. He has asked me to express his regrets that he
is unable to be here to introduce and participate in the introduction
of Mr. Casellas in person. However, the Senator has asked me to
insert in the record, and we will do so at this point, a recommenda-
tion and introduction of him.
[The prepared statement of Senator Kennedy follows:]
Prepared Statement of Hon. Edward M. Kennedy, a U.S. Senator from the
State of Massachusetts
It is a privilege to support the nomination of Salvador E. Casellas to serve on the
U.S. District Court for the District of Puerto Rico.
Mr. Casellas is an honors graduate of Georgetown University. He received his law
degree from the University of Puerto Rico, and a master of laws degree from Har-
vard Law School.
For many years, he has practiced with the San Juan firm of Fiddler, Gonzalez
& Rodriguez, where he has earned a reputation as one of the best lawyers in Puerto
Rico. He also served with distinction as the Secretary of the Treasury of Puerto
Rico, where his expertise in taxes, banking, and business law enabled him to be an
effective administrator of the Commonwealth's finances.
After his term of public service, Mr. Casellas returned to private practice, where
he concentrated on the area of business law. In addition to work for corporations
and individual clients, Mr. Casellas has advised several business associations and
has participated in the management of his law firm.
Mr. Casellas has also been an effective advocate of legal reform. He has been
working on a new code of Commercial Law for Puerto Rico as a member of the
Puerto Rico Academy of Jurisprudence, and he currently chairs the subcommittee
drafting the new code to replace the 1883 Spanish Code still in force in Puerto Rico.
He also formerly served as a member of the Governor's Economic Advisory Coun-
cil.
As these activities demonstrate, Mr. Casellas has devoted a great deal of time and
effort to making a positive contribution to the life of the people of Puerto Rico. He
has served as a director of many community organizations, including the Alliance
for a Drug-free Puerto Rico, the Puerto Rico Legal Aid Society, the Puerto Rico Com-
munity Foundation, and the Puerto Rico Police Advisory Council.
Mr. Casellas is also a long-standing friend of the Kennedy family. Robert Kennedy
had great respect for his ability, his leadership, and his friendship, and so do I.
I am especially pleased, therefore, to commend President Clinton for this impres-
sive nomination. Mr. Casellas will bring outstanding qualifications to the District
Court in Puerto Rico. His career is a model of excellence in the law. I believe he
will serve with great distinction as a judge, and I urge the committee to recommend
his confirmation.
Senator DeConcini. Representative, please proceed.
STATEMENT OF HON. CARLOS A. ROMERO-BARCELO,
A REPRESENTATIVE IN CONGRESS FROM PUERTO RICO
Representative Romero-Barcelo. Thank you, Mr. Chairman and
distinguished members of the committee. It is indeed my pleasure
and my privilege today to introduce to you Mr. Daniel Dominguez,
who has been nominated by the President to occupy a seat on the
district court in Puerto Rico.
In Puerto Rico, we have been fortunate and we have had a very
good selection of judges, and our court is an outstanding court and
now it is going to be a privileged court by having the addition of
two other members who will add to the court's capability.
I have known Danny Dominguez and his family for over 20
years, and I personally assure you that his integrity is above re-
proach and that Mr. Dominguez is an extremely qualified and
hard-working individual. As a matter of fact, I would say he is
probably a workaholic who will definitely be an asset to the ranks
of the Federal judiciary.
Mr. Dominguez is a graduate of Boston University, and then
graduated from law school at the University of Puerto Rico cum
laude back in 1970. He has been in the private practice of law ever
since 1970. He has been an outstanding attorney, particularly one
of the outstanding practitioners in constitutional law and labor law
in Puerto Rico.
He has been an adviser for three Governors — Don Luis Ferre,
from 1969 to 1972. He also was adviser to myself when I was a
Governor from 1976 to 1984, and now he has also been an adviser
to the present Governor, Dr. Pedro Rossello. His law firm,
Dominguez & Totti, is one of the outstanding law firms in Puerto
Rico.
He has participated in most of the very important cases having
to deal with labor law and constitutional law in Puerto Rico, par-
ticularly in civil rights cases and cases of job discrimination, rep-
resenting the citizens that have been discriminated against, and on
other occasions representing the government. He is respected by
his peers, and is well thought of not only by his peers, but also by
his opponents who have participated with him in court.
8
I have no doubt that Mr. Dominguez will be an outstanding
member of the court and that he will add to the luster of the U.S.
district court in Puerto Rico.
Mr. Chairman, I had not been approached by Mr. Casellas to
represent him here today, but I have known Mr. Casellas for all
my life and, personally, I think he is a very well-qualified individ-
ual. He is definitely a person beyond reproach. He is a very capable
attorney.
I probably have not been asked to represent him because of polit-
ical differences at home and from an ideological point of view. I
have my concerns about anyone that, even though he is a U.S. citi-
zen, doesn't believe in the right to vote and the right to representa-
tion. I put that in question, but personally I have nothing but good
things to say about Mr. Casellas from a personal point of view, and
particularly from a professional point of view.
However, there are questions about whether a judge that doesn't
believe in the right to vote as being more important than the privi-
leges of not paying taxes can really be in the U.S. district court,
but that is something to be considered on another occasion.
Senator DeConcini. Representative, thank you very much.
Representative Romero-Barcelo. You are very welcome.
Senator DeConcini. Do you think Mr. Casellas can serve as a
Federal district judge?
Representative Romero-Barcelo. Excuse me?
Senator DeConcini. Do you think he can serve as a Federal dis-
trict judge?
Representative Romero-Barcelo. I don't think there is any per-
sonal or professional reason whatsoever for not serving. What I
said is I have my misgivings from the point of view that I have
such a great respect for the institutions of democracy, for the right
to vote and the right to representation.
Mr. Casellas believes — his ideology is that you can be a U.S. citi-
zen and not have the right to vote and not have the right to rep-
resentation, and that it is better to have tax exemption than to
have the right to vote or the right to representation. To me, that
goes against everything that I think of in democracy, and I think
that a U.S. district judge has to believe in the system, has to be-
lieve in citizenship.
Senator DeConcini. But the fact, Representative, that you have
this philosophical and political disagreement, in your opinion,
doesn't affect his ability to serve as a Federal judge?
Representative Romero-Barcelo. I think that would be some-
thing that perhaps he should address himself to — the fact of how
much he is going to protect the voting rights of U.S. citizens and
the civil rights of U.S. citizens, and whether he thinks that it is
not as important as the commonwealth supporters think that it is
not.
Senator DeConcini. Very good. Thank you.
Representative Romero-Barcelo. I think that by his answers,
you might be able to better judge that. I repeat again, from a per-
sonal and professional point of view, he is very well qualified.
Senator DeConcini. Thank you very much.
Representative Romero-Barcelo. Thank you.
9
Senator DeConcini. If we could have the four nominees come
forward now, and while they are doing so, I want to note that
former Senator John Culver is with us today. Senator Culver, we
are very glad to have you here.
Would you gentlemen and lady please raise your right hands? Do
you swear the testimony you are about to give to the committee is
the truth, the whole truth and nothing but the truth, so help you
God?
Mr. Casellas. I do.
Mr. Dominguez. I do.
Ms. Vance. I do.
Mr. Bryson. I do.
Senator DeConcini. Senator Simon has another commitment he
has to go to, so I am going to yield to him for questions for Mr.
Casellas and Mr. Dominguez. If I could ask to let them make their
introductory statements, is that all right with you?
Senator Simon. Absolutely, and introduce any members of their
family or anything like that.
Senator DeConcini. Why don't we start with you, Mr. Casellas?
Why don't you make any introductions you care to make?
TESTIMONY OF SALVADOR E. CASELLAS, GUAYNABO, PR, TO
BE A U.S. DISTRICT JUDGE FOR THE DISTRICT OF PUERTO
RICO
Mr. Casellas. Thank you, sir, Mr. Chairman, and thank you,
Senator Specter and Senator Grassley and Senator Simon. It is a
real honor and a privilege to be before you this afternoon.
I have with me my wife, Carmen. She is with me this afternoon.
Senator DeConcini. Welcome, Ms. Casellas.
Mr. Casellas. We have two Carmens, we have two Carmens.
[Laughter.]
Senator Simon. We have a nominee with two wives here, Mr.
Chairman. [Laughter.]
Senator DeConcini. This is some democracy. What a country.
Mr. Casellas. It also happens to be my favorite opera, but that
is another thing.
Not with me are my two sons, Salvador Sandi, who is an attor-
ney in San Juan, and Pablo, who is an insurance broker in San
Juan, and my father, who is 86 years old and couldn't travel with
us. This afternoon, also, with me is John Culver, a good friend here
in Washington and also Ambassador Luis Guinot, who is on his
way, but he will be with us this afternoon, sir.
Senator DeConcini. Mr. Dominguez.
TESTIMONY OF DANIEL R. DOMINGUEZ, RIO PIEDRAS, PR, TO
BE A U.S. DISTRICT JUDGE FOR THE DISTRICT OF PUERTO
RICO
Mr. Dominguez. Yes. Good afternoon. It is an honor to be before
this honorable body. I have with me my wife, Carmen. [Laughter.]
She has been my companion and my wife for 28 years. She is a
lawyer. She works in the Supreme Court of Puerto Rico as the di-
rector of the judicial conference.
I also have with me my daughter, Ivette Marie, educated in the
Washington area at American University, who now lives in the
10
Washington area, working for a large brokerage house. Missing
that could not make the trip is my daughter, Ivonne Dominguez.
She is a public servant. She works for the Puerto Rico Telephone
Company; my daughter, Ivelisse Dominguez, who commenced law
school this week in Ponce, PR, at the Catholic University.
Also absent that could not make the trip are my father and my
mother, Dan Dominguez, Sr., and Carmen Dominguez, both retired.
They worked for American pharmaceutical corporations; my father-
in-law, Guillermo Irizarry Rubio, who was a former Secretary of
State of the Commonwealth of Puerto Rico, a model of a public
servant; and his wife, also a Carmen, Carmen Irizarry, who is also
a public servant of 30 years and she worked in the public schools
of Puerto Rico.
Thank you very much.
Senator DeConcini. Senator Simon.
QUESTIONING BY SENATOR SIMON
Senator Simon. Thank you. It turns out there are three Car-
mens. It is a good thing three people didn't stand up when you
were about to introduce your wife. [Laughter.]
Let me say first that I am going to vote for all of the nominees.
I am very pleased to be here. I specifically, however, wanted to
make a comment or two and ask a question of the Puerto Rican
nominees. I note, looking at the background, that both of you have
served in the U.S. military, and this relates to the comments of
Congressman Romero.
Today, Puerto Rico basically has colony status. We give it a dif-
ferent name, but that is what it is. Even France, not the best colo-
nizer in the world, gave Algeria representation in the French Par-
liament. You can serve in the military and you can serve as U.S.
judges, but you can't serve as a voting member of the House and
tVip ^pnjitfi here
On the health bill here in the Senate— and I don't know what is
happening in the House — between Senator Moynihan and myself,
with the help, I hasten to add, of Senator Mitchell, Puerto Rico is
protected, and I have from time to time been able to get amend-
ments to protect Puerto Rico on various issues.
But real candidly, my primary obligation, in addition to the na-
tional obligation, has to be to the people of my State of Illinois, and
I would be interested in your reflections on the whole question —
and, Mr. Casellas, particularly, because of your background, in
your reflections on the equal protection clause. Let me ask this
question of both nominees — of the equal protection clause and how
that affects the people of Puerto Rico today who are citizens of this
country, which, incidentally, is frequently not recognized by a lot
of people that Puerto Ricans are Americans just as much as the
four of us up here are Americans.
I would be happy if either one of you wishes to go first on that.
Mr. Dominguez. I think I can tackle that question, Your Honor.
Unfortunately, Puerto Rico suffers that injustice, and I refer you to
the book by George Toraya, who is now the chief judge of the first
circuit court, relating to all the inequities that Puerto Rico suffers.
One famous case that went to the Supreme Court of the United
States is a Social Security case relating to health benefits wherein
11
a person in the Bronx, NY, had certain rights and certain privi-
leges and certain services from the Federal Government, and took
a plane and arrived in Puerto Rico and he lost all those rights.
That is an enormous inequity.
That is why I personally believe in more participation for Puerto
Ricans, and that will probably be fulfilled and would only be ful-
filled when we have the right to vote. Unfortunately, we don't have
that right. We are going to be citizens where the Bill of Rights does
not really apply to us, in total, as they should.
Senator Simon. Mr. Casellas.
Mr. Casellas. Yes, Senator. As Resident Commissioner Romero
mentioned, I am a firm believer in commonwealth status, as con-
ceived in 1952 by mutual agreement between the United States
and the people of Puerto Rico. I continue to be a believer in com-
monwealth status. I am very proud of being a citizen of the United
States, of which my 16 years of service to the armed service bears
witness.
The real issue in Puerto Rico is one of grade. Can and should
Puerto Rico at this moment, with one-third of the per capita in-
come of the United States, with 60 percent of its population not
knowing English, with no natural resources, become a State and
bear the economic burdens of statehood?
To me, frankly, I would love to vote for the President of the Unit-
ed States, I would love to vote to have a Senator in this August
body, but at this stage in the historical and economic development
of Puerto Rico, I am convinced that statehood at this moment
would mean unemployment and welfare for the people of Puerto
Rico.
I came before this body and the House in 1976, in the midst of
an economic depression in Puerto Rico, precisely to talk about this
subject. Puerto Ricans don't want hand-outs. Puerto Ricans want
the dignity of a job. At this moment, at least as my limited intel-
ligence lets me see it, the commonwealth arrangement — it is a mu-
tual arrangement — is the way for Puerto Rico to improve its eco-
nomic status.
Unfortunately, I think we have achieved a majority — we are 21
for purposes of politics. I think we are sophisticated in politics, but
in economic terms we are still not of legal age. In order for Puerto
Rico to make an intelligent decision on its final status, it should
become of legal age economically and socially, and with our present
poverty I don't think we are yet prepared to do that.
We need in Puerto Rico right now — instead of dividing ourselves
between statehood and commonwealth, what we should do is have
a truce in the status issue and concentrate, together with your
help, to develop economically and socially so that after achieving at
least somewhere near Mississippi in economic development, we are
nearer to legal age and the people of Puerto Rico can make an in-
telligent decision.
For me, the political, the economics, the social — they go together.
I cannot separate them because I do not want welfare and lack of
jobs for my people. Basically, this is the way that I feel, Senator.
As far as my citizenship, I wouldn't be here if I wasn't as proud
as anybody in the room. I have 16 years of service to the armed
services. I presently hold the rank of civilian aide to the Secretary
12
of the Army for the last 8 years, a citizenship which I am very
proud of. But this is my difference with Congressman Romero.
Senator Simon. I understand that, and we all have differences
and that is part of this process. Let me just say, and I don't want
to get into the statehood issue to any great extent, but the statis-
tics you cite for Puerto Rico could also have been cited for New
Mexico when New Mexico became a State.
My question is your reflection on the equal protection clause. Are
the people of Puerto Rico being treated properly when we say to
them, if we have a draft, you are going to have to serve in the
armed forces, but we also say to them, sorry, we are not going to
let you vote for a member of the U.S. Senate, we are not going to
let you vote for a member of the U.S. House of Representatives? I
am interested in whether you think that we are complying as a
government with the equal protection clause when we permit that
kind of a situation to exist.
Mr. Casellas. Yes, Senator. The Puerto Rico Federal Relations
Act specifically gives to Puerto Ricans the privileges and immuni-
ties of the citizens of the different States. As far as the draft and
some economic arrangements, the people of Puerto Rico have on
two occasions voted to uphold the present arrangement.
I think there is a consensus in Puerto Rico of injustice in the
areas that you speak about. The real question is how to deal with
the injustices, and the people of Puerto Rico, as far as the common-
wealth status is concerned, feel that this should be discussed with
the U.S. Government and those injustices addressed so that the
people of Puerto Rico participate within the relationship and within
common citizenship to correct them.
That, I think, would be the aspiration of the commonwealthers
in Puerto Rico. But as far as — there are injustices, they are recog-
nized. The generic consent given by the people of Puerto Rico to the
commonwealth arrangement, I don't think is sufficient any longer.
There are those injustices. I believe, also, that very recently there
was a plebescite and the President of the United States has named
a joint committee to discuss all of these things, sir, but I do recog-
nize those injustices. I would hope that through either of the two
formulas, we could together work to correct them, sir.
Senator Simon. I thank you, and my hope is that something can
be done. There is just no question that Puerto Rico gets the short
end of the stick around here. You look at issue after issue, but the
decision where they should go has to be made by the people of
Puerto Rico. There are those who benefit economically from the
present status, but my personal belief is, whether it is Washington,
DC, or Puerto Rico or any place else, there should not be such a
thing as a second-class American citizen.
I thank you and I thank the other nominees for tolerating this
somewhat unusual dialog at a nomination hearing.
Thank you, Mr. Chairman.
Senator DeConcini. Thank you, Senator Simon.
Ms. Vance, would you like to make an opening statement?
13
TESTIMONY OF SARAH S. VANCE, NEW ORLEANS, LA, TO BE A
U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
LOUISIANA
Ms. Vance. I have no opening statement, Senator, except to
thank you very much for chairing this hearing this afternoon, and
I would like to thank Senator Specter and Senator Grassley for
being here and to tell you how honored I am to be here today.
I do not have a spouse named Carmen, but I do have some peo-
ple I would like to introduce to the committee, if I may.
Senator DeConcini. Please proceed.
Ms. Vance. Senator Johnston already introduced my husband,
Patrick, who is my husband and best friend for 23 years; my one
and only, Bobby Vance, the light of my life; my father, Bruno
Savoia; my mother, Sarah Savoia; my sister, Ann Savoia — you can
see we are subsidizing the airline industry this week; two of my
very best friends, Jan and Gary McDavid, who are Washington
lawyers; Hunter Johnston, a friend of mine and my husband's law
partner.
I think that is everyone. Thank you, Senator.
Senator DeConcini. Thank you very much.
Mr. Bryson, do you care to make any opening statement or intro-
ductions?
TESTIMONY OF WBLLIAM C. BRYSON, BETHESDA, MD, TO BE A
U.S. CmCUIT JUDGE FOR THE FEDERAL CmCUIT
Mr. Bryson. Thank you, Senator. I would join the other nomi-
nees in thanking the committee for giving us and me the privilege
of being here today. I would like to introduce my parents, who are
here, Mr. and Mrs. Addison Darden; my wife, Penny Clark; and my
children, Alice and Ellen, were not able to make it today, but they
tell me from their place on vacation that they are with me in spirit.
[Laughter.]
Senator DeConcini. I think they are very wise people, consider-
ing the circumstances. [Laughter.]
QUESTIONING BY SENATOR DECONCINI
Senator DeConcini. Thank you very much, and welcome to ev-
eryone who is here today.
Let me pose some questions to all of the nominees. If you are
confirmed as an appellate judge or a district judge, at some time
you will be asked to rule on various cases that have been decided
by the court of appeals, in the case of the district judge, and the
Supreme Court, in the case of the appellate judge, with which you
may personally have some disagreement.
How do you approach this, starting with you, Mr. Bryson? Would
you consider yourself bound by such precedent?
Mr. Bryson. Yes, Senator, I would. I am trained as a common
law lawyer and believe very much in the rule of law, and the rule
of law in the common law system being the rule of precedent. So
I would.
Senator DeConcini. Ms. Vance.
Ms. Vance. Yes, sir, I would view myself as bound by the prece-
dents of my circuit and of the U.S. Supreme Court.
14
Senator DeConcini. Mr. Dominguez.
Mr. Dominguez. Yes, sir. Not only under Federal law, but also
under common law of Puerto Rico, we are bound by the precedent
of" stare decisis.
Mr. Casellas. Most definitely, Senator, in my case, also, affirma-
tively.
Senator DeConcini. One of the issues that I have always been
deeply interested in is the Judicial Tenure Act and the discipline
of the judiciary. Do you have any feelings on whether or not there
ought to be a greater structure within the Federal judiciary for
complaints against judges or disciplinary action to be taken against
Federal judges?
Mr. Bryson.
Mr. Bryson. Yes, Senator. I think that there should be room for
legitimate complaints to be brought against judges. I think there
are instances in which, just in my own experiences, judges who are
not answerable for conduct that really goes well beyond the limits
even of a generous construction of judicial discretion should not be
allowed to go unchecked.
The problem, of course, is that there is a great potential for in-
timidation of judges by complaints coming from losing parties or
parties who simply have decided that the judge is against them be-
cause their cause is weak. As you know, there are so many of those
people that come before the courts that the potential for harass-
ment of judges would be great.
Nonetheless, I think, in the balance, that we need probably to be
willing to put up with somewhat more harassment in the interest
of having some avenue for correction of what now goes very often
as not corrected.
Senator DeConcini. Do you have any suggestions? Should the
circuit courts all be required to have a disciplinary process or a
complaint process?
Mr. Bryson. I think the circuit courts should have a complaint
process. I think that there are some courts in which some forms of
complaint process are in place now and I think that that should be
encouraged. I am not sure whether it should be done as a matter
of statute or as a matter of independent decision made by the cir-
cuit courts on the basis of their own perception of the degree of the
problem, but I think it would be a good idea.
Senator DeConcini. Ms. Vance.
Ms. Vance. Senator, I understand the concern for monitoring the
behavior of judges who have life tenure and who may not have the
bench and the members of the bar active in their supervision. How-
ever, there are Federal statutes that do permit the litigants and
frivate members of the public to file a complaint indicating that a
ederal judge has acted prejudicially to the administration of the
duties of his office, or that he is disqualified by reason of mental
infirmity or disability to sit. Those cases would be decided by the
head of the circuit bench for the district.
There are also a number of other Federal statutes that govern
the behavior of Federal judges and limit their practice of law, their
personal required disclosure of financial interests, so that I think
there are mechanisms already for disciplining Federal judges. The
question is whether or not they are utilized.
15
Senator DeConcini. You are in the third circuit?
Ms. Vance. No, sir. I am in the fifth circuit.
Senator DeConcini. The fifth circuit. I know in the ninth circuit
there certainly have been a few examples, and in, I think, the
eighth circuit there certainly were some examples where those
were not used, and maybe there are examples in every other circuit
as well.
My concern is, that it seems to me that those statutes are very
difficult to use and there ought to be more encouragement by the
circuit courts to use them. At least the ninth circuit has set up a
complaint process, and maybe other circuits have, too — maybe the
fifth circuit has — where you can file a complaint against a judge.
Even if it is a harassment complaint, you can file it as a citizen
and somebody is going to look into it and at least respond to it, but
it seems to me Federal judges are pretty immune from any type of
complaint, except possibly from the press. But they don't have to
run for office, so maybe it doesn't make much difference.
Ms. Vance. I think there is a procedure in the fifth circuit to file
a complaint. The problem is that practicing attorneys are some-
what reticent to file complaints against sitting judges.
Senator DeConcini. Exactly, so do you have any suggestions to
make it easier for people to be able to file complaints?
Ms. Vance. I think that if the public and the bar were somehow
assured that — there is no way you can file an anonymous com-
plaint; it wouldn't be fair — but that the process would be fairly en-
forced and that the judge would never hold it against them, I think
there would be more complaints filed, but I don't know how you
would go about assuring that, sir.
Senator DeConcini. Mr. Dominguez.
Mr. Dominguez. Your Honor, I agree with Ms. Vance. In Puerto
Rico, as a matter of fact, we did have a procedure that went
through in the early 1970's. If something new is going to be done,
I would suggest that we would have to do a balancing act between
the independence of the judge versus the discipline of a judge, and
make sure that it is not a decisional matter, that it is not some-
thing created by a decision, that it is something created by conduct
not relating with, obviously, the decisional process.
Senator DeConcini. Good point.
Mr. Casellas.
Mr. Casellas. Senator, I would hope that, at least in my circuit,
the leadership of the other circuit that you mentioned, that we do
have some sort of procedure to file complaints. Now, the statutes
in place, like Ms. Vance said, might not be known. They might be
cumbersome. Maybe they should be streamlined within each cir-
cuit, and then let the bar know exactly what has to be done.
The awareness by the bar of the complaint procedure is very im-
portant. The books are full of statutes that are in disuse. The com-
plaint procedure should be adopted, in my opinion, by the circuit,
if not there now, but most importantly discussed and distributed in
information to the bar so that these complaints can be filed and
they don't become academic.
Senator DeConcini. All of you have practiced law in one form or
another, and I suspect, as does any practicing lawyer, you have had
an occasion where you thought — maybe you haven't, but I certainly
16
had in my former practice occasions where I thought the judge was
discourteous and lacked some judicial temperament.
I would like to ask each of you, how do you intend to discipline
yourself and maintain a judicial temperament throughout your life-
time appointment?
Mr. Bryson.
Mr. Bryson. Senator, I think that is a concern that every judge
has to think about as the judge goes on to the bench and continues
on the bench. There is, as you say, a great temptation to simply
conclude that because people defer to you that you are therefore in-
capable of error and deserve at least as much deference, if not
more, than you get.
I think it is just a question of awareness. I think that, as a
judge — and I have seen many judges, as I am sure you have, who
do this very well — as a judge, you have to remind yourself that the
fact that you have been selected for this position doesn't mean that
you are somehow superior to the people that appear before you or
the parties that have their cases in your hands. It doesn't mean
that you are entitled to treat them discourteously. It doesn't mean
that you somehow have some god-given right to decree what their
fates shall be.
Your authority over them is a product entirely of the legal sys-
tem. You are a cog in the legal system, and I think it is something
that you have to remind yourself of over and over again. It is the
only cure for the disease.
Senator DeConcini. Ms. Vance.
Ms. Vance. I agree that you have to remind yourself that you are
a public servant and that you are there to serve the justice system.
It would seem to me that if you reminded yourself of the enormous
responsibility you have to make decisions that affect the lives and
the fortunes and the liberty of other people that that would be a
humbling experience and it wouldn't make you arrogant.
I think that if you remind yourself that life tenure is designed
to give you the independence to do your job and it was not designed
to set you above the people you were there to serve that you could
keep everything in perspective and remain courteous and even-
handed with the people who appear before you.
Senator DeConcini. Mr. Dominguez.
Mr. Dominguez. Your Honor, I have a friend, a judge friend, that
once said that judges should always remember that they are ap-
pointed and not anointed, and I think that what you have men-
tioned is precisely an indispensable characteristic of a judge, espe-
cially those, obviously, that are appointed for a lifetime. It is some-
thing simply that you have to have the discipline to follow it
through throughout all your career.
Senator DeConcini. Mr. Casellas.
Mr. Casellas. Mr. Chairman, I think really that in my case the
most important thing is to be humble. I think humility is the basic
principle to carry out any professional career. I would start with
being humble. I would start modestly, frankly, by examination of
conscience every night, which I do anyhow, for other reasons.
Then I would work at the judicial temperament in the sense of
we always have to be fair to both sides. We have to make certain
that both sides get a fair shake; be fair to both sides, work on that
17
continually, not let one side take advantage of the other, work on
that continually. That, I think, is judicial temperament. Be hum-
ble, don't be arrogant, and work at it.
From the point of view of the persons that you are dealing with,
I think we have to be respectful, I think we have to be courteous,
and we have to listen to what the other attorney and other parties
say. I would say these three things, for me, working at it, would
be judicial temperament put into practice.
Senator DeConcini. Senator Specter.
OPENING STATEMENT OF SENATOR SPECTER
Senator Specter. Thank you, Mr. Chairman.
I believe that Senator DeConcini has touched on a really critical
aspect, and that is courtesy. Senator Thurmond made the comment
many years ago that very much impressed me which I repeat when
he is not present, and that was that the more power a person has,
the more courteous he or she should be, and trial judges are at the
top of that list.
I think it is good just to spend a few moments on the subject,
as Senator DeConcini has, because you are all young men and
women and you are going to be on the bench a long time and you
may tend to forget it. Some have said that Federal judges ought
to run every 6 years and Senators ought to have lifetime tenure.
[Laughter.]
But as the years pass, it is easy to forget it, and there is a qual-
ity of the black robe and the permanence in the life tenure which
you just have to focus on again and again and again. When you be-
come impatient, and there is a temptation to do so, or lose your
cool, just think about the day that Senator DeConcini and Senator
Thurmond and I made a comment or two about it.
We do not customarily go very deeply into judicial philosophy in
these sessions. We like to have the hearings here, the format. I
know you will be mindful that you are judges interpreting the law,
not making the law, looking for the congressional intent, and fol-
lowing the strictures of the law and precedent, as opposed to sub-
stituting your own personal views of what the law should be.
There are a lot of questions which could be asked about that, but
I don't think we will advance the ball very much by extended dis-
cussion on that subject, but it is something that you always ought
to keep in mind.
I would like to put into the record, Mr. Chairman, a letter which
I received from a distinguished attorney, Michael M. Baylson, in
Philadelphia, recommending judge-to-be Sarah S. Vance based on
his knowledge of her work.
[Mr. Baylson's letter appears on p. 212.]
Senator Specter. You all appear to have good credentials, and
if the practice of the committee holds true, you will soon be con-
firmed. We wish you the very best on your new assignments. It is
a tough job. We expect you to work hard and we expect you to do
justice under the law.
Thank you, Mr. Chairman.
Senator DeConcini. Senator Grassley.
18
QUESTIONING BY SENATOR GRASSLEY
Senator Grassley. I compliment each of you on your appoint-
ment. I have some questions of Mr. Bryson. That doesn't mean that
you other nominees are not just as important, but I am not pre-
pared to ask you questions, and I would like to ask Mr. Bryson
more to have a discussion with you than a lot of questions. There
is some participation I would like you to have.
I have heard excellent reports about your abilities as a lawyer
and how you will perform as a judge. I have heard particularly that
you are impartial and independent. I would like to address with
you how that impartiality and independence was displayed in your
current position as Deputy Solicitor General. I want to refer to the
Knox case that you know so much about and you know that I have
been involved with.
When it originally came before the Supreme Court, the Solicitor
General's office filed a brief in opposition to the petition for certio-
rari. It is my understanding that that brief was filed under your
signature. What arguments were contained in that brief supporting
Knox' conviction, and why did you feel that you wanted to sign
that?
Mr. Bryson. Well, Senator, thank you. The case as it came to the
Supreme Court the first time from the third circuit was one that
came up on writ of certiorari. Of course, our office, the Solicitor
General's office, traditionally opposes certiorari in the vast bulk of
cases coming from the courts of appeals.
We looked very carefully at that case because that case obviously
was a case of some sensitivity and some difficulty, but we con-
cluded that the third circuit's judgment should be defended and
that the Supreme Court did not need to grant certiorari in that
case.
As I recall, the opposition that we filed to certiorari— this was,
I think, filed in March 1993, if I am not mistaken. The arguments
we made were basically these: first, that the term "exhibition,"
which was the key term in the statute that was at issue in that
case, a question of whether there was a lascivious exhibition of the
pertinent body parts even though those body parts were covered in
the films that were involved— we argued, as the third circuit had
held, that the term "exhibition" did not necessarily require an un-
covered revelation of the body parts. In other words, you could
have, at least under some circumstances, an exhibition even though
the body parts were covered. We, in other words, were defending
the third circuit's position.
We also argued that there was some indication in the legislative
history that there was no flat requirement of nudity in order to
qualify as an exhibition under the statute. We further argued in
urging the Supreme Court not to grant certiorari in the case that
this was a case of first impression. There was no conflict among the
circuits, and that, of course, is a very common ground for arguing,
as we often do, that certiorari should not be granted in a particular
case.
I did sign that brief— you are correct — as Acting Solicitor Gen-
eral.
19
Senator Grassley. Unfortunately, the Supreme Court did grant
the petition, and by the time the government's brief on the merits
was due the administration had changed. What arguments did the
government make in that brief regarding whether the statute re-
quired the child to be essentially nude and act lasciviously herself?
Also, in conjunction with that, reports indicate that you did not
sign the brief and that it was filed by political appointees. Is that
correct?
Mr. BRYSON. Taking the last half of the question first, Senator,
it is true that I did not sign the second brief. That was the brief
on the merits after the Solicitor General had been appointed and
confirmed. That brief took the opposition position, in effect, from
the brief that had been filed in opposition to the certiorari petition
6 months earlier which I had signed.
There is a custom in our office that we, as lawyers, do not typi-
cally contradict ourselves by switching positions in a brief. So, since
that was a switch in positions, I did not sign the second brief.
In that brief— this is the brief on the merits that was filed, I
think, in September or October 1993 — the office took the position,
contrary to what the third circuit had held, that, in fact, some form
of visibility was required of the pertinent body parts in order for
there to be an exhibition.
This was a construction of this term "exhibition" which was not
defined in the statute, but the argument was that you couldn't
have an exhibition if you couldn't see the item, the object, the body
part, that was purportedly being exhibited. The argument was that
therefore, since the third circuit had relied on the view that all that
was required was that there be a focus on the area rather than an
actual display of the body parts uncovered and nude, therefore the
third circuit's legal basis for its ruling upholding the conviction was
flawed and the case had to go back to the third circuit.
Now, there was a second aspect that you mentioned, a second
legal ingredient in the statute which was discussed briefly in that
brief. It wasn't really at issue in the case because it hadn't been
raised by the defendant, but it was the question of what the child
has to do in order for the depiction of the child engaged in sexually
implicit conduct to violate the statute.
Now, as you know, the statute has two separate elements. One
is a depiction, and two is that the child has to be involved in sexu-
ally explicit conduct. The approach that was taken in that brief and
in subsequent filings, in which our position has been clarified, I
think, is to say it is not necessary for the child actually to be in-
tending to act lasciviously, but only that the child be acting in a
way that some viewer would regard as lascivious.
I think perhaps because the initial brief was somewhat less clear
than it should have been on this point, I think there has been some
confusion on that. But I think we have cleared it up and that the
position that was taken on remand in the third circuit made, I
think, quite clear that it was not necessary for the child to be
shown to have intended to act lasciviously.
Senator Grassley. Do you have an opinion as to why the Solici-
tor General changed the Department's position?
Mr. Bryson. Yes, Senator. I think that this was a case of the So-
licitor General, whose responsibility it is to present to the Supreme
20
Court his best conclusion as to what the law requires in light of
his responsibilities to represent the United States — in good faith
and after close study, the Solicitor General concluded that the stat-
ute simply wouldn't bear the construction that the third circuit had
put on it.
Our office does, on occasion, not terribly often, but on occasion,
confess error or disagree with particular legal conclusions reached
by courts of appeals when cases come before the Supreme Court.
This was one of those instances, and I have to say that although,
of course, I had taken the contrary position 6 months earlier, I feel
very comfortable that the Solicitor General exercised his authority
in this case in good faith and solely on the basis of his reading of
the statute.
Senator Grassley. Well, as you know, that case was remanded
back to the third circuit. In the process of the Supreme Court act-
ing and before it was heard by the third circuit again, all 100 mem-
bers of the Senate had voted to state a disagreement with the Jus-
tice Department's changed position, specifically that it was con-
trary to congressional intent. The House later passed a similar
measure nearly unanimously, and then 230 Members of Congress
filed an amicus brief in the third circuit against the government's
position.
In the final analysis, as you probably know, the third circuit
agreed with us and not with the Department. I assume you are fa-
miliar with that case. Do you think that the third circuit's opinion
can be read to have supported the Justice Department's changed
arguments, as some in the Department are claiming now?
Mr. Bryson. Senator, I think it is clear that the third circuit said
two things. First, the third circuit did reject the government's anal-
ysis of the exhibition requirement. In that regard, the third circuit
disagreed with the position that the government had argued on re-
mand. So it is not correct to say that the third circuit embraced or
agreed with the Department's view in that regard.
There was a second aspect of what the third circuit did that was
consistent with the government's position, and it was this. The
Court said even on the government's theory, which was a more re-
strictive construction of the term "exhibition," we agree with the
government that the evidence in this case was sufficient to support
a conviction. The Court therefore, in that regard, agreed with the
government in its principal submission that at least if you view the
term "exhibition" more narrowly than the third circuit, in fact,
viewed it — nonetheless, if you view it in that narrow fashion pre-
sented by the Department, the evidence is still sufficient to support
the conviction and the conviction should therefore stand on either
ground.
Senator Grassley. I thank you for discussing this with me and
for other people to hear, as well. I think your discussion is good.
I think you have shown competence and independence, and I will
be glad to support you to your appointed position.
Mr. Bryson. Thank you.
QUESTIONING BY SENATOR DECONCINI
Senator DeConcini. Senator Grassley, thank you.
21
Along that line, let me ask each of the nominees a question re-
garding legislative history and congressional intent. You certainly
have expressed some concern already, Mr. Bryson, but what are
each of your views on the role of legislative history when a court
is faced with ambiguous language? Specifically, which factors
should a court rely on in a case of statutory construction beyond
the statutory language itself?
Mr. Bryson. Well, Senator, as your question suggests, the first
principle of statutory construction absolutely must be to go to the
language of the statute. There is a quip that occasionally, I think,
Judge Scalia will be heard to repeat, which is that some judges
seem to approach statutory construction by saying that if the legis-
lative history is unclear, perhaps we should resort to looking at the
statute.
That is not the approach that the current Supreme Court takes.
It is not the approach that I think ought to be taken. The first
thing to do is to go to the language of the statute. The language
of statutes is not always clear. It isn't always entirely clear how
the language applies in a particular case. There, I think you have
to resort — and I do not take the view that legislative history is ir-
relevant— I think you have to resort to whatever help you can get
from legislative history, context, the background against which a
statute was enacted, the purposes that the statute was intended to
serve, the evils that the statute was intended to address.
Those are the kinds of evidence that you can bring to bear in try-
ing to get the entire picture of what a statute is intended to mean,
starting with the language of the statute and using those other de-
vices as well.
Senator DeConcini. Thank you, Mr. Bryson.
Ms. Vance.
Ms. Vance. I think that I would agree with Mr. Bryson that in
construing with a statute that you begin with looking at the lan-
guage of the statute to ascertain congressional intent, and the first
rule of approach is the rule of plain meaning where you construe
the words of the statute in their ordinary, plain meaning.
If the plain meaning is not clear from the statute and the word-
ing is ambiguous, I do think that it is appropriate to consider legis-
lative history. I understand that there is a debate as to the reliabil-
ity of legislative history as an indication of congressional intent.
However, I do think that there are certain types of legislative his-
tory, such as committee reports, that should be authoritative on
legislative intent, and that you could be safe in relying on as an
indication of congressional intent, whereas there may be things
that are put in the record, so to speak, that may not be necessarily
a part of the real debate on the statute.
Senator DeConcini. What about statements of Members of Con-
gress that are put in the record, who were involved in the actual
drafting and passing of the legislation?
Ms. Vance. I definitely think that you should read them and con-
sider them.
Senator DeConcini. They are relevant, in your opinion?
Ms. Vance. They are relevant in the context of the debate and
what the issues were at the time and the Senator's role in that.
Senator DeConcini. Mr. Dominguez.
22
Mr. Dominguez. I would concur with what my two colleagues
have said. The only red light would be we must be extremely cau-
tious with ex parte, self-serving statements that may be placed in
the history of a law. You would have to look more at the live debate
rather than something or some comment that gets put into the
record when nobody is there, when there is no real debate. You
have to look with caution there.
Senator DeConcini. Mr. Casellas.
Mr. Casellas. Sir, I have little to add. I concur with my col-
leagues. When there is plain meaning, there should be plain mean-
ing, and I think that use of legislative history is useful sometimes.
Senator DeConcini. Thank you very much. I have no further
questions. I don't believe Senator Specter does. We thank you for
your attention and your responsiveness today. The committee will
certainly consider your testimony and the comments of those who
have spoken on your behalf.
Thank you very much.
Ms. Vance. Thank you.
Mr. Casellas. Thank you.
Mr. Dominguez. Thank you.
Mr. BRYSON. Thank you, Senator.
Senator DeConcini. The committee will stand in recess, subject
to the call of the chair.
[Whereupon, at 3:17 p.m., the committee was adjourned.]
[Submissions for the record follow:]
23
SUBMISSIONS FOR THE RECORD
UNITED STATES SENATE
QUESTIONNAIRE FOR JUDICIAL NOMINEES
1 . Full name (include any former names used)
Salvador E. Casellas
2. Address: List current place of residence and office address(es).
Home: A-1 1 Argentina Street
Urb. Gardenville
Guaynabo. P.R.00966
Office: Chase Manhattan Bank Bldg.
5th Floor
254 Munoz Rivera Ave.
San Juan, P.R. 00918
3. Date and place of birth.
San Juan, Puerto Rico. June 10, 1935.
4. Marital Status (include maiden name of wife, or husband's name). List
spouse's occupation, employer's name and business address(es).
Married to Carmen Ana Toro, housewife.
5. Education: List each college and law school you have attended, including
dates of attendance, degrees received, and dates degrees were granted.
B.S.F.S. - International Affairs - Cum Laude - Georgetown University - 1 953 -
1 957; LL.B. - Magna Cum Laudfi - University of Puerto Rico - 1 957 -1 960;
LL.M. (Master of Laws) - Harvard Law School - 1960 • 1961 .
6. Employment Record: List (by year) all business or professional corporations,
companies, firms, or other enterprises, partnership, institutions and
organizations, nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or employee since
graduation from college.
22-790 - 96 - 2
24
-2-
Emplovment: 1962 to 1972 - Fiddler, Gonzalez & Rodriguez, San Juan,
Puerto Rico - Partner.
Department of the Treasury, Commonwealth of Puerto Rico - 1973-1976 -
Secretary of the Treasury.
Fiddler, Gonzalez & Rodrfguez - 1 977-Present, San Juan, Puerto Rico -
Partner
Directorships: First Federal Savings and Loan Association, 1 982-1 983; Roig
Commercial Bank, 1979-1982; Telemundo, Inc., 1969-1972; Ana G.
Mendez Educational Foundation, 1980-1983; Puerto Rico Community
Foundation, 1 984-1 987; Metcalf & Eddy de Puerto Rico, 1 989-1 991 ; Puerto
Rican Cement Company, Inc., 1984-Present; Luis Muftoz Marin Foundation,
1980 Present; Puerto Rico Bar Association Foundation, 1985-1988; Puerto
Rico Legal Aid Society, 1992-1993; Banco Bilbao Vizcaya-Puerto Rico,
1984-1992; Centro Sor Isolina Ferre, 1991 -Present; Alliance for a Drug Free
Puerto Rico, 1 993-Present; Committee on Economic Development, 1982-
Present; Comit6 Estrategia Puerto Rico, 1 993-Present; Angel Ramos
Foundation, 1994.
7. Military Service: Have you had any military service? If so, give particulars,
including the dates, branch of service, rank or rate, serial number and type
of discharge received.
Yes. ROTC Distinguished Military Graduate - Georgetown University, 1957.
First Lieutenant, U.S. Army, Armor Branch. Served from July 1961 to
November, 1962.
United States Army Reserve, Judge Advocate General's Corps 1963 to
1967. Honorably Discharged on November 30, 1967. Serial Number 05-
201-051.
Civilian Aide to the Secretary of the Army - 1985-1989;
Civilian Aide Emeritus to the Secretary of the Army
1990-1994
8. Honors and Awards: List any scholarships, fellowships, honorary
degrees, and honorary society memberships that you believe would be of
interest to the Committee.
Associate Editor of the Law Review of the University of Puerto Rico, 1 959-
60.
25
-3-
Award of the Puerto Rico Bar Association as the most outstanding student
in his class, 1960.
Award of the Puerto Rico Bar Association to the most outstanding student
in Common Law subjects, 1960.
Fellow - American Bar Foundation
Recognition by the Federal Home Loan Bank Board for outstanding service
representing the Board as a Director of First Federal Savings Bank of Puerto
Rico 1982-83.
Academician • "Academia Puertorriquena de Jurisprudencia y Legislaci6n"
(Puerto Rico Academy of Jurisprudence).
Commander's Medal - Second U. S. Army - 1990
Puerto Rico National Guard Medal - 1992
9. Bar Associations: List all bar associations, iegal or judicial-related committees
or conferences of which you are or have been a member and give the titles
and dates of any offices which you have held in such groups.
American Bar Association
American Bar Foundation
Hispanic Bar Association
Puerto Rico Bar Association
National Conference of Commissioners on Uniforms State Laws
(1967-1972)
Law School Evaluating Commission - 1970-71
Puerto Rico Commission on the Bicentennial of the U. S. Constitution (1 987-
1989)
Puerto Rico Legal Aid Society - Director (1992-1993)
Puerto Rico Bar Association Foundation • Director (1985-88)
10. Other Memberships: List all organizations to which you belong that are
active in lobbying before public bodies. Please list all other organizations to
which you belong.
NONE
Comite' Estrategia Puerto Rico
26
-4-
Alliance for a Drug Free Puerto Rico
Centro Sor Isolina Ferre
Committee on Economic Development Inc.
Luis Munoz Marin Foundation
Caparra Country Club
Banker's Club
Order of St. John (Knights of Malta)
11. Court Admission: List all courts in which you have been admitted to
practice, with dates of admission and lapses if any such memberships
lapsed. Please explain the reason for any lapse of membership. Give the
same information for administrative bodies which require special admission
to practice.
Commonwealth of Puerto Rico - 1962
U.S. District Court - Puerto Rico - 1963
U.S. Court of Appeals - First Circuit - 1963
U.S. Customs Court - 1964
U.S. Court of Customs & Patent Appeals - 1968
Supreme Court of the United States - 1 977
District of Columbia - 1 979
U. S. Tax Court- 1981
12. Published Writings: List the titles, publishers, and dates of books, articles,
reports, or other published material you have written or edited. Please
supply one copy of all published material not readily available to the
Committee, also, please supply a copy of all speeches by you on issues
involving constitutional law or legal policy. If there were press reports about
the speech, and they are readily available to you, please supply them.
Note, Mandatory Leoal Easements. (Spanish) University of Puerto Rico Law
Review, Vol. XXVIII, p. 93 (1959)
Comments on New Horizontal Property Law. (Spanish) - University of Puerto
Rico Law Review, vol. XXVIII, p. 301 (1959)
Leoal Effects of Wills Executed Outside of Puerto Rico (Spanish) - Puerto
Rico Bar Association Law Review, Vol. XX, p. 307 (1960)
The Admiralty Jurisdiction in the Commonwealth of Puerto Rim. Puerto Rico
Bar Association Law Review, Vol. XXII, No. 2, p. 165 (1962)
27
-5-
Diplomatic Antecedents and Causes of the Spanish American War: 1895-98
(Spanish), Social Sciences, Review, University of Puerto Rico, Vol. IX, No.
1 p. 55 (1965).
Recent Court Decisions on Tax Matters (Spanish), Puerto Rico Bar
Association Law Review, Vol. XXVI, p. 298 (1966).
Federal and Commonwealth Jurisdiction in the Field of Maritime Law. Puerto
Rico Bar Association Law Review, Vol. XXVI, No. 4, p. 259 (1966)
Freedom of the Press and the Protection of Reputation (Spanish), Review of
the Puerto Rico Academy of Jurisprudence, Vol. 1, No. 1, p. 27 (1989)
(No English translation exists of the articles published in Spanish)
13. Health: What is the present state of your health? List the date of your last
physical examination.
Good. November 1993,
14. Judicial Office: State (chronologically) any judicial offices you have held,
whether such position was elected or appointed, and a description of the
jurisdiction of each such court.
None.
15. Citation: If you are or have been a judge, provide: (1) citations for the ten
most significant opinions you have written, (2) a short summary of and
citations for all appellate opinions where your decisions were reversed or
where your judgment was affirmed with significant criticism of your
substantive or procedural rulings; and (3) citations for significant opinions on
federal or state constitutional issues, together with the citation to appellate
court rulings on such opinions. If any for the opinions listed were not
officially reported, please provide copies of the opinions.
None.
1 6. Public Office: State (chronologically) any public offices you have held, other
than judicial offices, including the terms of service and whether such
positions were elected or appointed. State (chronologically) any
unsuccessful candidacies for elective public office.
28
-6-
Secretary of the Treasury of Puerto Rico - 1973-1976.
This was an appointed office, t have never been a candidate for any elective
public office. I served on the Puerto Rico Police Advisory Council (1991-
1992); as a Trustee of the Puerto Rico National Guard Trust (1991-1992);
as a member of the Municipal Reform Commission (1992); member of the
Governor's Economic Advisory Council (1986-1989); Director of the
Government Development Bank of Puerto Rico (1976); member, Governor's
Finance Council (1973-1976); member, Puerto Rico Commission to Combat
Crime (1973-1976).
17. Legal Career:
a. Describe chronologically your law practice and experience after
graduation from law school including:
1 . whether you served as clerk to a judge, and if so, the name of
the judge, the court, and the dates of the period you were a
clerk;
NO
2. whether you practiced alone, and if so, the addresses and
dates;
NO
3. the dates, names and addresses of law firms or offices,
companies or governmental agencies with which you have been
connected, and the nature of your connection with each.
After graduating from law school and finishing my military service, I
joined the firm of Fiddler, Gonzalez & Rodrfguez in San Juan, Puerto Rico in 1962.
I became a partner in 1965. From 1962 to 1972 I practiced law with this firm.
In January, 1973, I became Secretary of the Treasury of Puerto Rico until
December, 1976. In January, 1977 I rejoined the firm of Fiddler, Gonzalez &
Rodrfguez as a partner and I am still at the firm.
b. 1. What has been the general character of your law practice,
dividing it into periods with dates if its character has changed
over the years?
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2. Describe your typical former clients, and mention the areas, if
any, in which you have specialized.
(1 ) During the first ten years of my practice (1 962-1 972), I had a varied
practice with considerable litigation in Federal and State courts. During the time
that I was Secretary of the Treasury, I gained experience in tax, legislative, fiscal
and government matters. In 1977, I rejoined the firm, and I practiced principally
in the fields of corporate, banking and tax law. During this time I participated in the
important tax litigation of the firm, and as counsel in general litigation. I also
participated in several appeals to the Supreme Court of Puerto Rico. So, generally
speaking, my practice has been divided into the first phase (1962-1972) in which
I litigated continuously in both Federal and Commonwealth courts; and the second
half from 1977 onwards in which I practiced general business law with a
concentration in taxes.
(2) My typical clients during the last ten years have been corporate such
as The Chase Manhattan Bank, N. A., Westinghouse Electric Corporation, American
Airlines, United Parcel Service, and non-profits such as The Conservation Trust of
Puerto Rico, Triple-S (Blue Shield Plan), Centro Sor Isolina Ferr6 and the Alliance for
a Drug Free Puerto Rico. Since 1977, 1 have specialized in taxes, general corporate
law and banking. I have been a director of four banking institutions, one of them
representing the Federal Home Loan Bank Board on its Board of Directors.
c. 1 . Did you appear in court frequently, occasionally, or not at all?
If the frequency of your appearances in court varied, describe
each such variance, giving dates.
During my active litigation practice (1962-1972) I appeared regularly
before the Federal and State Courts. I handled a diversity of cases from tort
claims against insurers, to admiralty litigation, contract cases and tax cases.
2. What percentage of these appearances was in:
(a) federal courts;
(b) state courts of record;
(c) other courts.
About half of the litigation was in the Federal Court and the other half
in the Commonwealth Courts. I did try a couple of cases in the U. S.
Customs Court and also an appeal of one of the cases before the U.S. Court
of Customs and Patent Appeals which ruled in my client's favor.
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3. What percentage of your litigation was:
(a) civil;
(b) criminal
Approximately 95% of my litigation experience has been in civil cases.
I did handle some criminal cases in the Federal Court as a court appointed
attorney and approximately seven or eight habeas corpus petitions, also in
the Federal Court as a court appointed attorney. So, overwhelmingly it was
a practice in civil litigation.
4. State the number of cases in courts of record you tried to
verdict or judgment (rather than settled), indicating whether
you were sole counsel, chief counsel, or associate counsel.
Approximately 25, mainly as sole counsel.
5. What percentage of these trials was:
(a) jury;
(b) non-jury
All were non-jury except two criminal cases.
18. Litigation: Describe the ten most significant litigated matters which you
personally handled. Give the citations, if the cases were reported, and the
docket number and date if unreported. Give a capsule summary of the
substance of each case. Identify the party or parties whom you represented;
describe in detail the nature of your participation in the litigation and the final
disposition of the case. Also state as to each case:
(a) the date of representation
(b) the name of the court and the name of the judge or judges
before whom the case was litigated; and
(c) the individual name, addresses, and telephone numbers of co-
counsel and of principal counsel for each of the other parties.
A. M. Mereado a Hilos v. Junta Azucarera. 95 D.P.R. 852 (1 968) -
The Sugar Producers Association of Puerto Rico (the "Association"), Mario
Mereado e Hijos, and the Land Authority, operators of sugar mills, challenged a
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resolution of the Puerto Rico Sugar Board (the "Sugar Board") ordering them to pay
for transporting and hauling cane without any limitation whatsoever regardless of
the distance travelled, eliminating the one-dollar maximum amount which had
prevailed by law until then. This resolution was enacted in accordance with Act
No. 55 of June 19, 1962, amended subdivision (e) of §6 of the Sugar Act,
eliminating the one-dollar maximum amount which the sugar mill should pay to the
colonos as compensation for the hauling of their cane.
After several preliminary incidents, the Association filed a petition with the
Sugar Board to fix the maximum amount of one dollar for the compensation to be
paid to growers for transporting and hauling cane. The Association argued that the
application of said Act to the 1963 grinding season resulted in an increase in
compensation only to those colonos who transported their cane through a distance
of more than 17 kilometers. The increase, therefore, was not uniform in its
applicability, neither was consistent with the Sugar Act of Puerto Rico of 1951.
Therefore, §6, without providing for a minimum-maximum compensation for
transporting and hauling cane, is constitutionally inapplicable. The Sugar Board
denied the petition.
The Supreme Court, after oral arguments and briefs, concluded that the
compensation had been established by law itself and, hence, it could only be
altered by legislative affirmative action. Having no legal basis, the Sugar Board's
Resolution was set aside and left without effect. Subsequently, a legislative action
was taken to promulgate an Act directing the Sugar Board to make a survey of the
costs of hauling and delivery of cane.
The case is one of the few where the Supreme Court of Puerto Rico has held
a regulation unconstitutional.
The process lasted from 1 964 to 1 968. I represented the Association before
the Sugar Board and in the appeal to the Supreme Court, including the brief and the
oral argumentation. Justice Blanco Lugo wrote the opinion.
Opposing counsel - Juan Nevdrez Santiago (Deceased), Adaljisa Dfaz de
Coliazo (on appeal) - Telephone Number: (809) 767-0263 - (809) 789-3981
B. Merced v. Jefe de Penitenclarfa. 88 D.P.R. 482 (1963)
This case reached the Supreme Court on appeal from the Superior Court,
where an indigent minor defendant was denied his petition for habeas corpus. The
Supreme Court affirmed.
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When petitioner was sixteen (16) years, he was sentenced by the Minor's
Guardianship Court for committing burglary. The judgment provided that said minor
would remain in the custody of his parents on condition that if he violated the
terms and conditions thereof, he would be committed to the Industrial School of
Mayaguez.
At the age of twenty (20) years, petitioner violated the P. R Drug Act and
was tried before the Superior Court. He was sentenced.
In 1961 defendant filed a petition for habeas corpus before the Superior
Court, alleging that the Judgment had been rendered without jurisdiction because,
since defendant was under the jurisdiction of the Minor's Guardianship Court, that
court had not waived jurisdiction.
The court denied the petition.
Three major errors were noted by appellant. The first one being that the
Superior Court erred in holding that under the provisions of Act No. 97 of 1955
(the "Act"), petitioner could be prosecuted as an adult without the Minors' Court
waiving its authority. The second issue raised was that the Court also erred in
failing to designate an attorney for the hearing of the petition for habeas corpus.
Finally, the third error set forth by appellant was against the e_x post facto
application of an act.
The Supreme Court held that the Act, in so far as it permits the Minor's
Court, to waive its authority over a minor over 18 and under 21, in order for him
to be prosecuted as an adult for offenses committed during the effectiveness of the
Act, is not £& post facto when applied to such minor, since the Act was in effect
when the violations of law were committed. In connection with the second error
raised by appellant, the Supreme Court reaffirmed the constitutional right of
counsel for indigent defendant, however, it found no practical purpose in reversing
the judgment and remanding the case for further hearing of the same evidence
before the Superior Court, at which petitioner shall be assisted by counsel.
Minor Victor M. Merced, was the petitioner and appellant. I was appointed
by the Supreme Court to aid the defendant in the perfection of his appeal in 1961 .
The Superior Court denied defendant's petition for habeas corpus. Supreme Court
affirmed. Mr. Justice Perez Pimentel delivered the opinion of the Court.
Opposing Counsel - Peter Ortiz, Esq. - Telephone Number: (809) 725-1681
or (809) 722-2199
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C. MgrtineZ v. Commonwealth Oil Refining Co.. Inc.. 92 D.P.R. 693
(1965).
Three-hundred and eighty-two (382) workers of defendant Commonwealth
Oil Refining Company filed suit in the Superior Court, claiming double pay for work
during the lunch hour.
The trial court dismissed the complaint without going to its merits since it
understood that it lacked jurisdiction over the matter. Defendants then filed with
the Supreme Court for a writ of review.
The Supreme Court issued the writ and reversed the inferior court's decision
and ordered the claim to be litigated on its merits. Fundamentally, the Supreme
Court, indicated that the Superior Court erred by incorrectly applying a prior
Supreme Court ruling. The Supreme Court indicated that its prior ruling was not
applicable to a claim arising under a labor statute, which provides for compensation
at double rate for work performed during mealtime. The prior ruling determined
that when by a collective agreement there is a mechanism to deal with grievances
and provides for compulsory arbitration of disputes, the claim arising pursuant to
said agreements shall not be considered directly in the courts without utilizing said
mechanism.
In this particular case, the right of workers arose from a labor statute and not
from a collective bargaining agreement. However, the court evaluated the long
period of time (three and a half years) the case had been in litigation and, in
accordance with the spirit of the law and the legislative intent, it held that the trial
court could keep its jurisdiction. It indicated that the trial court could not construe
any part of the agreement to lead to a different result. Furthermore, it indicated
that, if it wished to interpret the agreement, the trial court had the power to
appoint a commissioner to receive the evidence on that aspect.
Trial lasted from 1962 to 1965. Mr. Justice Santana Becerra delivered the
Court's opinion. I was co-counsel for the Commonwealth Oil Refining Co., Inc.,
along with Victor M. Pons, Jr., later Chief Justice of Puerto Rico - (809) 723-
2100), and Juan R. Torruella del Valle (now a Federal Appellate Judge - (809) 729-
8010). I prepared the brief, which was also reviewed by co-counsel.
Opposing counsel • Jos6 A. Suro, Esq. (retired) and Miguel J. Rios Lugo,
Esq., telephone number unavailable.
D. Serralta v. Martinez Rivera. 97 D.P.R. 466 (1 969)
34
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Plaintiff filed a complaint for damages against appellant Cervecerfa Corona,
Inc. ("Cervecerfa Corona") and its employee, alleging that while the defendant was
negligently driving Cervecerfa Corona's truck, it crashed into plaintiff's car, causing
damages to the driver.
Defendant contested plaintiff's allegations by arguing that the accident was
caused by force majeure. Cervecerfa Corona admitted the occurrence of the
accident, but argued that the accident was of a fortuitous nature. However, it then
filed a third-party complaint against the seller of the truck's tires, P. R. Tire Inc.,
alleging that defective tires had caused the accident. The third-party defendant
requested the dismissal of the third-party claim on account of being untenable as
a procedural question and because the cause of action was barred.
The Superior Court, dismissed the third party complaint. Cervecerfa Corona
then appealed to the Supreme Court which reversed the inferior court's decision
and ordered the complaint be answered.
Fundamentally, the Supreme Court held that the allegations involved the
typical situation of the "distribution" of monetary liability between two or more
joint tort-feasors, in which, although under the doctrine which governs according
to our precedents it is a solidary liability with the prejudiced party, the court has
previously permitted the existence between the joint tort-feasors of the
"distribution" of monetary liability in adopting said view of "distribution".
In regards to the second defense, concerning the barring of the cause of
action, the Supreme Court held that the inferior court erred in its conclusion that
the action had tolled. In doing so, the trial court applied the limitation period of six
(6) months provided in §1379 of the Civil Code. But the allegations were made in
motion for dismissal and it is necessary to rely on the allegations. The third-party
plaintiff charged the third-party defendants with Aquilian fault, not breach of
contract. Hence, existing in that sense cause for action against the third-party
defendants, the rules about "distribution of monetary liability between joint tort-
feasors are equally applicable, being this a monetary one which could be
adjudicated in a third-party complaint.
This was a significant case in that the Court expressed and indicated the
elements which need to be present in order for original defendant to be able to
successfully bring a third-party defendant in an action for damages under Puerto
Rican statutes.
I was counsel for Puerto Rico Tire, Inc., third-party defendant before the
Superior Court and prepared the brief for appellant in the Supreme Court.
35
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Trial period lasted from 1967 to 1969 and Mr. Justice Santana Becerra
delivered the Court's opinion. Opposing counsel • Hartzel, Fernandez, Novas &
Ydrach (law firm now dissolved) and Aido Segurola, now retired, telephone number
(809) 754-3000.
E. Rodriguez v. Tribunal Superior. 102 D.P.R. 290(1974)
The Supreme Court of Puerto Rico issued CERTIORARI in order to review a
Superior Court Judgment which left without effect a Motion for Judgment Relief
issued in default. The Superior Court had dismissed the Motion for Judgment
Relief because the statute of limitations had tolled.
Petitioner argued that he had not appeared in court on time following his
attorney's advice, who was at the time, handling a petition for voluntary
bankruptcy before the U. S. Federal District Court. Subsequently, petitioner's
attorney died before filing a motion to paralyze the procedures. Notwithstanding
these facts, the Supreme Court of Puerto Rico confirmed the Superior Court's
resolution. In doing so, the Supreme Court determined that the limitation term of
six (6) months specified in Rule 49.2 of the Puerto Rico Rules of Civil Procedure is
jurisdictional, and that appellant could not raise substantive issues of law which
should or had to be raised before judgment as affirmative defenses or after
judgment in appeal.
This was a case which reaffirmed the precedents to be followed in order for
a Court to be able to adjudicate a Motion for Judgment Relief under the Rules of
Civil Procedure.
This case was decided PER CURIAM, on May 29,1974. Eduardo Negr6n
Rodrtguez, Esq. (now retired, telephone number (809) 765-8579) and myself were
co-counsel for Mr. Rafael Rodriguez, petitioner.
I prepared the brief before the Supreme Court which was reviewed by co-
counsel Rodriguez. Opposing Counsel was Antonio Bird, Sr. (now retired),
telephone number: (809) 721-0190
F. Productos Llbbv's International.lnc. v. Luce & Co.. 286 F. Supp. 301
(1968)
Action by plaintiff, Productos Libby's International, Inc. ("Productos") an
Illinois Corporation, was brought against a Puerto Rico partnership, Luce & Co.
36
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("Luce"). Defendant moved to dismiss arguing that the federal court had no
jurisdiction under 48 U.S.C. 5 §863, 864. The District Court held that "domicile"
within jurisdiction provision of Puerto Rico - Federal Relations Act is equivalent to,
and synonymous with the state of incorporation. Illinois corporation, which had
principal place of business in Puerto Rico, was not domiciled in Puerto Rico, and
thus federal court had jurisdiction.
In furtherance, the District Court held that for jurisdictional purposes under
the Puerto Rico-Federal Relations Act, a corporation is domiciled in the jurisdiction
were it was incorporated and not were it has its principal place of business.
I was trial counsel for Productos Libby's International, Inc. and prepared the
brief. Judge Fernandez Badillo decided the case in 1968. It was a leading case at
the time. Opposing counsel • Arturo Estrella (now deceased).
G. Haves Industries. Inc. v. Caribbean Sales Associates. Inc.. 387 F.2d
498 (1968)
This action arose under an alleged termination of contract without cause.
Caribbean Sales Associates, Inc., a Puerto Rican corporation, had a distributorship
contract with defendant Hayes Industries, Inc., a Michigan manufacturer. In 1966
defendant canceled the contract. Plaintiff believed this cancellation to be a
violation of rights conferred upon it by a Puerto Rican Dealers Contract Act.
Although this case raised several procedural issues regarding the Federal
Rules of Civil Procedure, the most important issue for the development of case law
in Puerto Rico was with regard to the new Puerto Rico Dealers Act. Regarding this
issue, the Circuit Court determined that, although the District Court was of the
view that the Puerto Rico statute governed, the contract prevailed. The Court of
Appeals held that Michigan law is to govern since it was stipulated that way in the
distributorship agreement.
This was the first time the Court of Appeals ruled on an action arising under
the Dealers Act, which had been enacted just two years before.
I represented plaintiff in trial and prepared the brief on appeal for Appellee.
Judge Aldrich, McEntee and Coffin, Circuit Judges, gave the opinion on January
10, 1968. Opposing Counsel - Gonzalo Sifre, Esq. (now retired). Tel. No.: (809)
250-5671
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H. foible v. Puerto Rico Industrial Development Company ("PRIDCO").
392 F.2d 424 (1968).
Action was brought by PRIDCO ("Pledgee") against Raible ("Pledgor") in
connection with 60,000 shares of pledged corporate stock. The suit was,
eventually removed to federal district court on ground of diversity of citizenship.
The District Court entered judgment from which defendant pledgor appealed. The
primary issue in this suit was to determine the consequences of a Pledgee's voting
pledged stock in favor of a merger without notice to, or knowledge of the pledgor.
The Court of Appeals, held that under agreement between Pledgor of corporate
stock and Pledgee, pursuant to which 60,000 shares of preferred stock were to be
held by Pledgee as collateral security for fulfillment of Pledgor's obligation as
guarantor of lease from Pledgee to corporation, Pledgor was entitled to credit of
$10 per share against his obligation, where Pledgee, without notice to or
knowledge of Pledgor, exercised rights of ownership by voting stock in favor of
merger of corporation, which merger resulted in change in nature of pledged
property and in exchange of Pledgor's $10 preferred shares for common stock with
par value of one cent.
After carefully examination by the agreement entered by and between
Pledgee and Pledgor, as well as the applicable dispositions of the Puerto Rican
corporate law, the Court of Appeals indicated that since the agreement made no
separate provisions for voting rights, as between the parties themselves, even
though it might have done so, it would be reasonable to assume that Pledgor was
content, that as a normal matter. Pledgee should possess the voting right which,
on the books, it appeared to have. However, the Court of Appeals did held that
even if we accept the intention that under the agreement ordinary voting rights
were under the Pledgee, there are some votes which cannot be justified by this
authority. The Court thought this was such a vote. Therefore the Court of Appeals
found it hard to disagree with Pledgor's contention that Pledgee's action
constituted an "arbitrary confiscation" of his stock.
The Court of Appeals vacated District Court's judgment in favor of Pledgee.
Another issue in the present case dealt with a third party claim presented by
Raible against Standard Steel and Wire Company, and hence, apparently against
Standard Steel and Tube Company, (the "Surviving Company") of the
aforementioned merger transaction, asserting that he is entitled to reimbursement
for having to respond for his $48,000 "guaranty" of the rental obligation. The
Court of Appeals held that, inasmuch as Raible undertook the obligation to pay, as
guarantor, for any event of default incurred by the disappeared company, it not
only was Raible's obligation independent, but to permit him to claim over against
38
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the Surviving Company would be contrary to the whole tenor of the agreement
relieving the surviving company of liability under such circumstances. The Court
of Appeals found Riable's appeal so frivolous in this respect that the surviving
company was adjudicated with double costs.
This case was decided by Aldrich, Chief Judge, McEntee and Coffin, Circuit
Judges, on April 15, 1968. I represented third party defendant during trial,
prepared the brief on appeal and appeared for oral argument before the Court.
Opposing counsel - A. Torres Braschi (now deceased)
I. United States of America v. Miguel Bermudez Torres. No. Cr. 26-13
(1963)
This was a criminal action in the federal court. The defendant was accused
of receiving stolen goods moving in interstate commerce knowing them to have
been stolen, in violation of Title 18 USC §659. The defendant was found not
guilty by the jury since defendant was able to prove that the property was
unlawfully seized and taken from him against his will and without a search warrant
by police officers.
The defendant was acquitted and discharged. I represented the defendant
during his trial by jury. This was my first criminal case before a jury.
The case was decided by U. S. District Judge, Clemente Ruiz-Nazario on
September 4,1963. I was counsel for Mr. Miguel Bermudez Torres, defendant.
Unfortunately, this judgment was not published. Opposing counsel was Benicio
Sanchez Rivera, Esq., then Assistant U. S. Attorney, tel. no. (809) 729-6771.
(809) 729-6771
J. Antonio Roio Sucrs. S. en C. v. The United States. 420 F.2d 750
(1969)
This action was an appeal from the decision and judgment of the United
States Customs Court, Second Division, overruling Appellant's protest against the
Collector's classification of a sugar crane as an article having as an essential
feature an electrical element or device under Paragraph 353 of the Tariff Act of
1930, and assessed with duty.
The Customs Court held that the crane was properly subject to classification.
39
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The Court of Customs and Patent Appeals held that the sugar crane was
primarily agricultural equipment and set aside the classification.
The significance of this case was the favorable economic impact it had on
the large sugar industry of Puerto Rico.
As lead counsel for Antonio Roig Sucrs. S. en C, I tried the case before the
U. S. Customs Court, Second Division; prepared brief on appeal and appeared for
oral argument before the Court of Customs and Patent Appeals. This case was
decided in 1 969. Opposing counsel was Andrew P. Vance, Chief Customs Section,
Department of Justice.
Due to the fact that so much time has elapsed since I tried these cases,
some of the participating attorneys are unavailable for reference. I therefore,
enclose a list of prominent attorneys who are familiar with my litigation and
professional experience.
19. Leoal Activities: Describe the most significant legal activities you have
pursued, including significant litigation which did not progress to trial or legal
mattes that did not involve litigation. Describe the nature of your
participation in this question, please omit any information protected by the
attorney-client privilege (unless the privilege has been waived).
(a) During the last ten years, I have been active with my firm in the areas
of taxes, banking and general business law. In addition to work done
for individual clients, I have advised the P. R. Bankers Association and
the P. R. Manufacturers Association on a number of important issues.
I have also participated in the management of the firm as a member
of the Management Committee and chairman of the Corporate
Section.
Besides my professional activities at the firm and the pro bono work
mentioned in Section III, during these years I participated in several
important legal reforms which have had an impact on Puerto Rico as
a whole.
For example, in 1985-1986 I participated in developing the position
of Puerto Rico with regards to the proposed changes to Section 936
of the U. S, Internal Revenue Code. Puerto Rico suggested to
Congress that the funds deposited by the so-called 936 companies in
the Puerto Rico banking system, be utilized to assist other Caribbean
40
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nations participating in the Caribbean Basin Initiative. The Island's
proposal was adopted by Congress and as a result, over $1 billion of
936 funds have been invested in the Caribbean with over 20,000 jobs
created.
Another instance was in 1986-1989. I was a member of the
Governor's Economic Advisory Council where I participated actively
with the Secretary of the Treasury in designing and enacting the Tax
Reform Act of 1987. This important legislation was similar in scope
to that adopted in the U. S. in 1986, but also included excise taxes.
As former Secretary of the Treasury and as a tax lawyer, I contributed
to the process and the final approval of this important fiscal reform.
(b) Banking - In 1982, our leading federal savings and loan association
was in severe financial difficulties. Because of my experience as bank
regulator while Secretary of the Treasury of Puerto Rico, and as a well
known banking lawyer, I was asked by the Federal Home Loan Bank
Board to assume the leadership of the Board of Directors and with
their assistance rehabilitate the institution as a so-called "Phoenix".
My knowledge of banking law and taxes helped me in that important
task and by 1984 the bank had returned to financial health. It
continues to be our leading savings bank to this day.
(c) Code of Commerce - For three years I have been working on a new
Code of Commercial Law for Puerto Rico as member of the Puerto
Rico Academy of Jurisprudence. I chair the sub-committee drafting
the new Code to replace the 1883 Spanish Code still in force in
Puerto Rico. The new Code will include provisions governing Puerto
Rican maritime law. It should be completed in 1995.
(d) Section 936. In 1974-1975 the House Ways and Means Committee
proposed limiting tax free liquidations under Section 332 of the U.S.
Internal Revenue Code. This proposal was contained in the tax reform
initiative of 1974. Puerto Rico's industrial development program
depended heavily on the ability of U. S. manufacturing subsidiaries
doing business on the Island to liquidate tax free into their U. S.
parent corporation in order to repatriate the earnings which they had
accumulated. At the time, Puerto Rico was undergoing a severe
recession because of the 1973-74 oil crisis and the proposed
amendment to Section 332 would have severely affected its economy
and ability to attract new investment with unemployment hovering at
41
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18%. As Secretary of the Treasury of Puerto Rico I travelled to
Washington on very short notice and appeared before the House Ways
and Means Committee chaired by representative Wilbur Mills. I
explained to the Committee the comparative poverty of Puerto Rico
compared to the mainland, and the severe dislocation that would
occur if its industrial development program was affected. I spoke
from personal notes since I did not have time to prepare a formal
statement. Therefore, I do not have a copy of my testimony.
The Committee expressed that h had no intention to harm Puerto
Rico, and asked the Executive Director of the Joint Committee on
Internal Revenue Taxation, Mr. Lawrence Woodworth, to meet with
me and other officials of the Government of Puerto Rico to develop a
mutually satisfactory solution. Thereafter, I headed the team that
negotiated with the Congress and the U. S. Treasury in adopting
Section 936 of the Code. In July, 1975, I again appeared before the
Ways and Means Committee together with then Resident
Commissioner Jaime Benitez and the Economic Development
Administrator, Hon. Teodoro Moscoso, to present the position of the
Commonwealth of Puerto Rico. A copy of my testimony and
statement is included.
Section 936 was specifically designed to attract U. S. investment to
the Island in order to create more employment and decrease its
dependency on welfare funds. My negotiations with Congress lasted
for approximately 1 8 months and included important meetings with
then Senator Russell Long, Chairman of the Senate Finance
Committee. Section 936 was finally approved in 1976 and it became
an important economic development tool in order for Puerto Rico to
come out of its severe recession.
(e) Anoel Batista - In 1964 I was appointed by the Federal Court to
represent state prisoner Angel Batista in his petition for habeas
Corpus- Mr. Batista was imprisoned for life after being found guilty of
murder in the Superior Court of Puerto Rico. I visited Mr. Batista in
the State Penitentiary and became convinced of his innocence. His
conviction had been due primarily to the testimony of a woman with
whom he had been emotionally involved at one time. After lengthy
hearings and testimony, the Commonwealth Department of Justice
was able to sustain that Mr. Batista had not exhausted all of his state
remedies, and the Federal Court refused to set aside his conviction.
42
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Sixteen years later, I was back working at the law firm and, to my
surprise, Mr. Batista came to see me. He had been set free because
the woman who had been the key witness against him in his murder
trial, had become very religious and confessed her perjury. Mr.
Batista had served all those years in the penitentiary even though he
was innocent. I was shaken by the experience and by Mr. Batista's
continued confidence in me. He wanted his record to be cleared. I
represented Mr. Batista in this last effort but bureaucratic procedures
and the lack of a specific statutory remedy did not enable him to have
his record completely cleared. However, Mr. Batista was a free man
and I shall always remember the moving experience.
W P.R. Tolloate Tax - In 1976, my last year as Secretary of the
Treasury, I proposed the enactment of a withholding tax of 10% on
all of the corporate profits accumulated by the then so called 931
corporations doing business in Puerto Rico under the industrial
development program. These corporations, several hundred in
number, did business in Puerto Rico under local tax exemption
statutes and repatriated their profits without any local tax at the end
of their exemption period under the provisions of Section 332 of the
U. S. Internal Revenue Code.
With the enactment of Section 936, to become effective in October
of that year, all of the accumulated profits (several billion dollars), of
the companies could have been declared as dividends completely tax
free and not be invested in Puerto Rico, which desperately needed
capital. My withholding tax proposal, also known as the tollgate tax,
caused a furor and strong opposition in the business and corporate
community which was counting on the repatriation of the
accumulated funds tax free. They argued that their local tax
exemption grants gave them the right to do so and mounted an
extensive lobbying campaign in the Legislature of Puerto Rico to
oppose the approval of the tollgate tax.
This was an unforgettable experience for me, since I was basically the
only proponent of the tollgate tax and the interested corporations had
obtained the support of other members of the cabinet and many
legislators. In countless meetings and appearances before the
Legislature I was able to slowly bring them around to support the
approval of the tollgate tax. With all of the business community
aligned against the tax, it was finally approved in the last day of the
legislative session of 1 976 by one or two votes in each chamber, with
43
-21-
a last minute attempt to derail it minutes before the midnight deadline.
This was one of the highlights of my public service as Secretary of the
Treasury inasmuch as the tollgate tax served as a retainer to keep all
of those funds invested in the economy of Puerto Rico, to be later
repatriated through the payment of the 10% withholding tax. The tax
contributes presently over $300 million to the Treasury of Puerto Rico.
44
-22-
II. FINANCIAL DATA AND CONFLICT OF INTEREST
1. List sources, amounts and dates of all anticipated receipts from deferred
income arrangements, stock, options, uncompleted contracts and other
future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers,
clients, or customers. Please describe the arrangement you have made to
be compensated in the future for any financial or business interest.
Fiddler, Gonzalez & Rodriguez - My partnership interest in the law firm is
valued at approximately $225,000. Said interest will be paid in five years
in monthly installments in accordance with the Partnership Contract. Upon
retirement from the firm, I would be entitled to receive a pension from a
qualified pension plan, all in accordance with federal and local law. The
pension will be paid by the Pension Trust on a monthly basis throughout my
lifetime with a lesser pension to my spouse if she survives me.
Puerto Rican Cement Company, Inc. - As a director of this company, I have
a deferred income arrangement with an accumulated amount of
approximately $230,000. Upon my resignation as a director such amount
will be transferred to a bank or insurance company to continue deferral.
After my departure from the firm and resignation as a director of Puerto
Rican Cement Company Inc., I will not have any interest in either of these
entities.
2. Explain how you will resolve any potential conflict of interest.including the
procedure you will follow in determining these areas of concern. Identify the
categories of litigation and financial arrangements that are likely to present
potential conflicts-of-interest during your initial service in the position to
which you have been nominated.
I believe the best procedure to avoid potential conflict of interest or the
appearance thereof, is to disqualify oneself from any case or matter which
may present such a situation. As a general rule, I would disqualify myself
from any case or matter involving a relative; and on any cases of my former
law firm for a period of years in excess of that required by the Canons of
Judicial Ethics. I would apply the same rule to any former clients.
45
-23-
3. Do you have any plans, commitments, or agreements to pursue outside
employment, with or without compensation, during your service with the
court? If so, explain.
No.
4. List sources and amounts of all income received during the calendar year
preceding your nomination and for the current calendar year.including all
salaries, fees, dividends, interest, gifts, rents, royalties, patents, honoraria,
and other items exceeding $500 or more (If you prefer to do so, copies of
the financial disclosure report, required by the Ethics in Government Act of
1978, may be substituted here.)
A copy of my Financial Disclosure Report is enclosed.
5. Please complete the attached financial net worth statement in detail (Add
schedules as called for).
Attached is my financial statement as of June 30, 1994. Since mid-year
figures for 1994 are not completely available, this statement adequately
reflects my net worth give or take 5%.
6. Have you ever held a position or played a role in a political campaign? If so,
please identify the particulars of the campaign, including the candidate, dates
of the campaign, your title and responsibilities.
Yes. In 1967 a plebiscite was held in Puerto Rico to determine political
status. In that campaign I presided over the organization known as "Citizens
for Commonwealth Status". In 1968 I was active in Senator Robert
Kennedy's campaign until his untimely death. Thereafter, I joined Senator
Humphrey's efforts. In 1972, I headed Senator MacGovern's campaign in
Puerto Rico and was a delegate to the Democratic National Convention in
Miami. I have never had any formal participation in local campaigns. I have
been a friend and adviser of former Governor Rafael Hernandez Col6n. In that
capacity, I have been close to him throughout his twenty years of public life,
including campaign periods.
46
-24-
III. GENERAL
1 . An ethical consideration under Canon 2 of the American Bar Association's
Code of Professional Responsibility calls for "every lawyer, regardless of
professional prominence or professional workload, to find some time to
participate in serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances and the amount of time
devoted to each.
In my practice before the Federal Court from 1962 to 1972, 1 handled
a number of court appointed cases defending the disadvantaged. In
1971, I chaired the Committee to design and establish the public
defender panel for the Federal Court in San Juan. Among the court
appointed cases that I handled before the Federal Court, were
approximately seven or eight habeas corpus petitions on behalf of
inmates at the State Penitentiary.
I have also been active pro bono in non-profit institutions. Some examples
are the following:
Puerto Rico Legal Aid Society - In 1989 there was a dispute between the
management of the society and the lawyers providing services. The
Supreme Court of Puerto Rico intervened and appointed a new board of
Directors to study the situation, arbitrate the dispute and assure that legal
services to the indigent were not affected. I was one of the new directors
appointed by the Supreme Court. In 1993 we completed the reorganization
of the Society and a new Board of Directors was elected.
Puerto Rico National Guard Trust - The Trust was established by law In
1991 to provide scholarships for children of guardsmen and aid to their
families. I was appointed by the Governor to represent the public interest.
I assisted in organizing the Trust and served for two years.
Puerto Rico Police Advisory Council - I was a founding member of the
Council in 1990 and served until December, 1993. We acted as advisers to
the Police Superintendent and participated in numerous police and
community activities.
47
-25-
Luis Mufioz Wc'tn Foundation - Former Governor Luis Mufioz Marfn was the
founder and architect of modern Puerto Rico and of Commonwealth status.
I was a director and later President of the foundation for over 10 years. The
Foundation established a museum and archives similar to those of a
Presidential Library in the United States. Over 15,000 persons visit the
archives and the museum each year. I have also provided pro bono legal
advice to the institution together with my firm.
Puerto Rico Community Foundation • I was founding member of the first and
only community foundation in Puerto Rico, established eight years ago with
the assistance of the Ford and Rockefeller Foundations. As a director I
participated in fund raising activities and in the determination of programs for
the Foundation. I have also provided pro bono legal advice to the institution
together with my firm.
Alliance for a Druo Free Puerto Rico • This non-profit entity was formed last
year inspired by the Partnership for a Drug Free America. I am a member of
the board of Directors and have participated in preparing and launching a
massive public media campaign against drugs similar to that of the
Partnership in the United States. I have also provided pro bono legal advice
to the institution together with my firm.
Centro Sor Isolina Ferre • This non-profit institution operates three centers
for the needy in Ponce, San Juan and Guayama. As a director, I have
participated in determining policy and in fund raising. I have also provided
pro bono legal advice to the institution together with my firm.
Committee on Economic Development • This non-profit institution is
patterned on the Committee for Economic Development of the United States.
I have been a member for over eight years and have participated in several
major studies relating to industrialization, government reorganization,
tourism, education and mass transit. I have also provided legal services pro
bono to the Committee.
The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any
organization that individually discriminates on the basis of race, sex, or
religion. Do you currently belong.or have you belonged, to any organization
which discriminates •- through either formal membership requirements or the
practical implementation of membership policies? If so, list, with dates of
membership. What you have done to try to change these policies?
48
-26-
No.
3. It there a selection commission in your jurisdiction to recommend candidates
for nomination to the federal courts? If so, did it recommend your
nomination? Please describe your experience in the entire judicial selection
process, from beginning to end (including the circumstances which let to
your nomination and interviews in which you participated).
No. The judicial selection process has been a lengthy one. Last July, the
leadership of the local Democratic Party asked me if they could submit my
name for consideration by President Clinton. After consulting with my
family, I informed them that I was willing to be considered. Last December
I received a letter from the White House informing me that I was being
recommended for nomination and received numerous documents to
complete. After receiving the documents, the matter was referred by the
White House to the Justice Department where a Deputy Assistant Attorney
General reviewed them and interviewed me at length regarding my
background, professional expertise, etc. Thereafter an Assistant Attorney
General and his staff interviewed me in Washington, also at some length.
The FBI then conducted their investigation including an interview.
Concurrently with the FBI, the American Bar Association also started their
evaluation which concluded with a personal interview with the ABA
representative in Philadelphia. Shortly thereafter, the ABA reported favorably
on my professional qualifications and the nomination by the President came
a few days later.
4. Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any specific case, legal issue or question in a manner
that could reasonably be interpreted as asking how you wold rule on such
case, issue, or question? If so, please explain fully.
No.
5. Please discuss your views on the following criticism involving "judicial
activism."
The role of the Federal judiciary within the Federal government, nd within
society generally, has become the subject of increasing controversy in recent
years. It has become the target of both popular and academic criticism that
alleges that the judicial branch has usurped many of the prerogatives of other
branches and levels of government. Some of the characteristics of this
"judicial activism" have been said to include:
49
-27-
a. A tendency by the judiciary toward problem-solution rather than
grievance-resolution;
b. A tendency by the judiciary to employ the individual plaintiff as
a vehicle for the imposition of far-reaching orders extending to
broad classes of individuals;
c. A tendency by the judiciary to impose broad, affirmative duties
upon governments and society;
d.
A tendency by the judiciary toward loosening jurisdictional
requirements such as standing and ripens; and
e. a tendency by the judiciary to impose itself upon other
institutions in the manner of an administrator with continuing
oversight responsibilities.
I believe that the role of the Federal Judiciary is to interpret the Constitution
and laws of the United States in cases and controversies properly brought within
its limited jurisdiction. The role of the Federal Judiciary is not to usurp the role of
the political branches of government.
The public conception that the Federal Judiciary has become more active is
often misplaced. As the society and economy of our nation have become
increasingly complex, the Federal Government has had no alternative but to
intervene in substantive areas previously reserved to state regulation. The
Congress has extensively legislated in areas of economic regulation and Federal
Courts have inevitably been called to intervene as these laws have given rise to
litigation. This is not activism; the increased role of the Federal Judiciary mainly
reflects the increased preeminence of the impact and pervasiveness of Federal laws
in every day endeavors.
It is indeed true that in fulfilling its constitutional role, the Federal Judiciary
has been forced to resolve difficult issues; some of which involve principles of the
highest possible order. However, and regardless of the parties, or of the
importance of the issues involved.the Federal Judiciary must confront these issues
within the framework of the law and legal precedent, and with the purpose of
achieving justice.
I do not believe that the Federal Judiciary should be utilized as a vehicle to
advance a private ideological agenda, nor an individual seeking justice be used to
affect the lives of persons that have not sought legal recourse. It is not the role of
50
-28-
the Federal Judiciary to subvert the political mandate of the citizens as expressed
by the political process by imposing obligations upon governmental institutions that
do not arise from legislation.
Federal Courts were not created to legislate, for that role was reserved to the
Congress and to the Legislatures of the States. Federal Courts were not created
to administer the laws enacted by these bodies; it is incumbent upon the Executive
Branch to do so. I believe that the Federal Judiciary is ill-equipped to regularly, and
as a matter of course, engage in the administration and oversight of governmental
programs.
To the contrary. The role of the Federal Judiciary is to adjudicate the cases
and controversies brought to them and to interpret the laws and the Constitution
of the United States. I believe that these laws must be given the effect intended
by the Congress, which is the political branch that responds to the citizenry.
Finally, it must be kept in mind that the Federal Judiciary is the one entrusted
to interpret the Constitution of the United States. This prerogative and duty must
not be exercised lightly, but instead with great care and responsibility, with wisdom
and independence of thought.
51
COUNSEL
Fernando Perez Col6n, Esq.
Martinez Odell & Calabria
P. 0. Box 363706
San Juan, Puerto Rico 00936-3706
Tel. (809) 763-0014
Victor M. Pons, Esq.
(Former Chief Justice of Puerto Rico)
Centro de Seguros Building
Suite 41 5
701 Ponce de Le6n Ave.
Miramar, Puerto Rico 00907
(809) 723-2100
Alberto Santiago Villalonga, Esq.
P. 0. Box 9949
Santurce, Puerto Rico 00908
Tel. (809) 724-1212
Francisco de Jesus Schuck, Esq.
(Former Attorney General of Puerto Rico)
Goldman, Antonetti, C6rdova
GPO Box 70364
San Juan, Puerto Rico 00936-0364
Tel. (809) 765-4540
Julio M. Rodrfguez, Esq.
GPO Box 3507
San Juan, Puerto Rico 00936-3507
Tel. (809) 759-3172
52
Gonz&lo Sifre, Esq.
McConnell, Valdes, Kelley
270 Mufioz Rivera Avenue
Hato Rey, Puerto Rico 00918
Tel. (809) 759-9292
Antonio Bird, St., Esq.
P.O. Box 3128
San Juan, Puerto Rico 00902
Tel. (809) 721-0190
Alvaro Caldertin, Esq.
P. 0. Box 2259
Hato Rey, Puerto Rico 00919-2259
Tel. (809) 753-5050
Hon. Hiram R. Cancio
(Former Federal Judge)
P. 0. Box 5630
San Juan, Puerto Rico 00902
Tel. (809) 765-4540
Hon. Juan R. Torruella
U. S. Court of Appeals
First Circuit
Federal Court Building
Ave. Chard6n
Hato Rey, Puerto Rico 00918
Tel. (809) 787-2285
53
'| JM* | FINANCIAL DISCLOSURE REPORT KfSBKS^
I. I— m ■turrlBB (loot oooo, am, uui> iaiua.ii
CASELLAS, SALVADOR E.
1. TlUa (Artlclo XII Ji
ortooa lodlcoto actlvo or
ifjjjlittltt JoOooo ladlooto
NOMINEE - U. S. DISTRICT JUDGE
P. 0. Box 3507
San Juan, Puerto Rico 00936
I. Ooqr or On— l—tl—
NOMINEE - UNITED STATES
DISTRICT COURT - PUERTO RICO
5. ftoport typo (oboe* appropriate tjrpa)
JL. — *— « i—. Of 22 June 94
jr_ Initial annual riool
1. ana of
June 30,1994
I. Booortloo torlsd
1 Jan 1993
30 Jun 1994
■ • Co too Ooala of too loforoatloo nnoTalooa lo tola ■■iinil. it
la, to oy oploloo, lo niamjllnin with opollaoalo Ion ood
rogulotlooo ^_
aovlovlog Of floor iloootoro _^^_^___^__^____^^__
IMPORTANT NOTES: The instructions accompanying this form must be fallowed. Complete oil parti,
*-> Ike NONE box far each aactJon where job hare no reportable information. Sim on last page.
.—'■■■ ■■ ■■ '■■ .:■.'■■■ '■".. " : .. . ■ ■ .■ ■
I. POSITIONS. (Reporting individual only; see pp. 7-6 of Instructions.)
□
POSITION
Director
NONE no roportoolo pooltlooo)
Civilian Aide Emeritus
Partner
Director
Director
Director
Director
rector
M
Di
NAME OF ORGANTZATION/r-NTITY
Estrategia Puerto Rico (Non-Prof it)
Secretary of the Army
Fiddler, Gonzalez & Rodriguez (Law Firm)
Pnai-Tn P<r-ar, famunt n* Tr,r- (p..KH„ f^.p^y)
Alliance for a Drug Free Puerto Rico (Non-Prof it)
Centros Sor Isolinarerre (Non-Profit)
Committee for Economic Development (Non-Prof it)
_ irector
II. AGREEMENTS.
Fundaci6n Armel Ramos (Non-Prof i t )
Luis Murioz Marin Foundation iNon-Profit)
D
DATE
(Reporting individual only, fee p. 8-9 of Instructions.)
PARTIES AND TERMS
NONE (Bo roportoolo ogr
U According to the Partnership Agreement, my interest in the Firm of Fiddler,
Gonzalez & Rodriguez (approximately $200,000) will be paid during 5 years
in 60 equal payments.
2) My deferred compensation as a Director of P. R. Cement Co. shall be
transferred to an insurance company for an annuity contract.
III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 9-12 of Instructions.)
□
DATE
(Honoraria only)
SOURCE AND TYPE
NONE (Bo roponohlo i
Director's Fees - P. R. Cement Company, Inc.
Salary and Bonus - Fiddler, Gonzalez & Rodriguez
OROSS INCOME
(yours, not spouse's)
5 42,000.00
$390,000.00
$
$
$
54
FINANCIAL DISCLOSURE REPORT (cont'd)
a«M of Poxaoo XasortlDO
CASELLAS, SALVADOR E.
Dot* of tepox-t
30 Jun 1994
IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.
(Includes those to spouse and dependent children; use the parenthetJcals '(S)" and '(DC)' to Indicate reportable
reimbursements ana gifts received by spouse and dependent children, respectively. See pp. 13-15 of Instructions.)
H
SOURCE
NONE (Bo rach lopoxtoblo
DESCRIPTION
ox gifts)
V. OTHER GIFTS. (Includes those to spouse and dependent children; use the parenthetJcals *(S)' and '(DC)' to
Idepei "
indicate other gifts received by spouse and dependent children, respectively. Sec pp. 15-16 of Instructions.)
SOURCE
NONE (le 0000 xoporuslo olfu)
H
DESCRIPTION
VALUE
$_
$_
$_
s
VI. LIABILITIES. (Includes those or spouse and dependent children; Indicate where applicable, person responsible
for liability by using the parenthetical '(S)' for separate liability of spouse, "(J)" for Joint liability of reporting
individual and spouse, and '(DC)' for liability of a dependent child. Set pp.16-18 orlnstructions.)
t-qrprTQB
NONE (lo raporttblo lloollltlu)
Rio Arenas Limited Partnership
□
DESCRDTION
VALUE CODE*
San Jose Rental Housing S. E.
Crown Life Insurance Co.
Notes
Payable
Notes
Payable
Loan
Payable
D
S 15, 000 or law
5250,001 to 5300, 000
X • 115,001 to 550,000
O - $500,001 to 51,00,0,000
1 • 530,001 to 5100,000
P - MOTO ttuu> SI, 000, 000
* • 1100,001 to US0, 000
55
FINANCIAL DISCLOSURE REPORT (cont'd)
■a»a of P*r»cc Reporting
C AS ELLAS, SALVADOR
D*t* of Mpcrt
30 Jun 94
VII. INVESTMENTS and TRUSTS - income, value, transactions.
and dependent children; tee pp. 18-27 of Instructions.)
(Includes those of spouse
p— crlptloc of Aaaata
(ucioolag txuat caaet*)
Xadioata, vfcar* applicable, owner of
tee eaeet by e.i»g to* pereatbetleel
•fJI* for joint ownarahlp cf raport-
•; individual and .poo.., •(alitor
•.perata omara&le by .peg.., *(DC'j"
.or evoerahip by oependeot child.
Place "(X)* after eaeb eeoet
eacespt in prior dlacloaure.
duriag
c.
Ore** valo*
at end ot
reporting
period
s.
Sraanotloa* dmrlaa reportioo period
id
tat..
cod*1
U-8)
«iv.;
TEv.f
ID
Vain*,
Cod.''
(J-P)
(J)
Vain*
Mat nod.
Cod.-5
fa-*)
aanat,
rSSSi
•lion)
XX sot aouopt Xros, diecloeore
teL,
Monti.
(l)
Valo*.
coda'
(J-P)
So.'
Idastlty of
STfitvia1
tZABMOtiOB)
1 1 NONE (»o roporcell.
Inrn— . aa.ata, or
L^b^J treaeactlona )
1
Accrued Pension Benefit
P
U
Partnership Interest -
Fiddler, Gonzalez & Rdz.
M
II
3Account at BankiTrust
po. of PR «7=;nnnp?592f Jl
c
Int
M
4Account at Merrill Lync
#141-50637 (J)
h
D
Int
J
T
'Account at Smith Barney
*R?7-nn«iOR-in_nifi [j)
n
Int
L
T
'Account at Paine Webber
aJX-21188-48 (J)
A
Int
K
T
'Deferred Compensation-
P.R. Cement Co.IqCj.LJ)
D
Int
M
T
IRA Accounts (J)
C
Int
K
T
•Cash Value Ins. Policie
Crovn Life & Eouitable(>!
s
)
N
T
'$145 Shares of Common
Stock-Bco. Popular P.R,.(
DD
Div
M
T
1*5088 Common Stock of
Bank S, Trust Co. of PF(J
B
Div
M
H
"200 Common Stock of
Rnici Pnmmprrfsl Bank (J
A
Div
J
H
"3740 Preferred Stock
of Bco. Santande.r-P.B.K
)D
Div
L
T
BouqhJ
12/1
7/93
14 4000 Common Stock of
Interstate General CoiJ
A
Div
K
T
Bought
4/
A 11
1/94
5 'pi
2000 Common Stock of
A
Div
K
T
Bought
3/3
0/94
Q/cm
_ 2137 Common .Stock of
Innprsparp MpdTraT Pnrp.
J)
K
H
» 5 Class A Units of
Ran .Tnsp X*.fl. PtnShiB.(J
M
V
11 2 Class A Units of
Rio Arpnas T.td ...PfcHSlliB,
fJ)
K
W
" 3 Units Santa Maria
Associates Ltd. Ptnshic
31
K
V
" 2 Units Rio Mar
(j)
T.
«
Ronnht
4/
3/94
> Xaooaa/eaia Code*. e-»i,oso ax 1**. l-Ji.ooi to u,500 c-jj,soi to 3,000 o-ii.ooi to SIS, 000
■ i*m Cal- " * M' f"jl»-001 to SS0.0O0 »•§ 50.001 to SIOO.OOO O-S100.O01 to 11.000.000 1-Rora than 11. 000. 000
! valo. Cod*.: MlS.000 or '••• l-JlJ,051 to JlO.OOO J.-j56,o61 io Uoi.S&O JrTVBff.OOl to JjlcJoM
IB*. Col. CI 1 Oil fSJSO.OOl to SSOO.000 O-S300. 001 to XI .000.000 P-Mor* th.n SI. 000. 000
1 Oelac Method Cod*.: S-ippraieel 1-Coat {real alt.-., onlyl S-Aa»..«»*ot r,rT filaalTHaxUt
l*a> Col. a) Vlaok valo* v*ota*r v-I.tieatad
22-790 - 96 - 3
56
CONTINUED - PAGE 2
FINANCIAL DISCLOSURE REPORT (cont'd)
■aaa of Paraoo Saportlog
CASELLAS, SALVADOR E.
Data of Sapart
30 Jun 94
VII. INVESTMENTS and TRUSTS - income, value, transactions, (indodes those of spouse
and dependent children; tee pp. 18-27 of Instructions.)
Saacrlptiao of Aaaata
tuclttdlag tnat aaaata)
Xadiaata, «tu« appljraMa, ovoax of
tba aaaat by ualag toa paragthatlcal
*(5|' ?oz joint wwnblp of raport-
log ladivlaiul u( »poo»«, »i»)r tor
aapaxata ovearaalp by apeuaa. *1DC)B
gPnunaraMp by •apiaoast child.
flaoa •(!)• aftai Met ant
- anspt ina prior diacloaura.
curias
*JJ3oiJ"
e.
Oroaa valna
at and of
tS?IoiDB
■A
Trinaaotlona dartoo cvportiog period
u3
alt..
ID
valoa*
Coda'
tJ-PJ
<S)
«al«a
Nathad,
Coda'
To-*)
tjlaia.
alrou,
If aot oxaapt irot diacloaura
Monti)'
•MQf
(>)
Yal0G2
coda2
CoJS'
i
EduUiy of
XUHCtlOO)
I 1 NONE (Bo rapoxtabla
lAcoaa, aaaata, or
1
D.S. Savings Bonds
c
Int
K
V
U.S. Treasury Notes
B
Int
K
T
?ought
2/3
/94
' Federal Farm Credit
Rnnds
c
Tut.
K
T
1
GNMA Serial Bonds
E
Int
N
T
3ought
3/1
V93
5 Puerto Pico Government
Pnnne,
E
Int
M
T
* AFICA Bonds (P. F.
Financial fturhnri ty )
E
Int
M
T
3ouoht
1 2/2
3/93
7 CMO's - Banco Santande
anH Pi t i hank-
r
Tnf
u
T
•
Mortgage Trust Bonds
E
Int
K
T
3ought
9/7
/93
<
10
n
12
u
14
IS
It
17
11
IS
20
1 Imaa/Cala Cosaat afl,M0 or laa. b-11,001 to 11,100 c-12,501 to 5,000 D-«S,001 to S1I.000
ftaa eol. SI t D<1 I-S15.001 to HO. 000 P-JSO.001 to S100.000 O-iioo.OOl to S1.000.DOO ■•Mara than 11.000.000
i KSS CodaiS 5-$iS!oM ot la.i I-!lS|o6l to JSS.Boo Mlo.ool le lIU.OOO ti.jlM,Bol to tSSo.oU
1 fralaa MathSc Coomi fr-Uppralaal ' lh-Co.t (rial altita only) i-A..aal»a« J-SaahAUrkat
(Sao Gel. C3) o-look Valaa V-Otaar V-Srtlaatae
57
FINANCIAL DISCLOSURE REPORT (cont'd)
lu* of Ptrsos bperclfio
CASELLAS, SALVADOR E.
D»tM ef Bapext
30 Jun
H
1994 I
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (indicate pan or Report)
IX. CERTIFICATION.
In compliance with the provisions of 28 L'.S.C $ 455 and of Advisory Opinion No. 57 of the Advisory Committee on
Judicial Activities, and to the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudicatory
function in any litigation during the period covered by this report in which I, my spouse, or my minor or dependent children
had a fininrisl interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I certify that all information given above (including information pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was
withheld because ft met applicable statutory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 US.CA. app. 7, } 501 ei. teq., 5 L'.S.C § 7353 and Judicial Conference
regulations.
Signature _
Dm 1 July 1994
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 US.CA. APP. 6, « 104. AND 18 US.C I 1001.)
FILING INSTRUCTIONS:
Mail
signed original
and 3 additional
copies to:
Judicial Ethics Committee
Administrative Office of the
United States Courts
Washington. DC 20544
58
SALVADOR E. CAS ELLAS
Financial Statement
June 30, 1994
ASSETS
Cash in Bank Trust $72,000.
Cash at Paine Webber 15,000.
Cash at Merrill Lynch 500.
Cash at Smith Barney 53,500.
Deferred Compensation 220,000.
Cash Values Insurance Policies 335,000.
IRA Account 42,000.
Investments - Attachment 1 2,498,175.
Real Property - Attachment 2 450,000.
Other Fixed Assets - Attachment 3 82,500.
Accrued Pension Benefit 1.785.842.
LIABILITIES
S5. 554. 517.
Mortgage Loan - BBV-P.R. 150,000.
Mortgage Loan - Banco Popular 140,000.
Notes Payable Rio Arenas Limited Partnership, S.E. 25,000.
Notes Payable San Jose Rental Housing, S.E. 39,000.
Loan Crown Life Insurance Co. 55.900.
409.900.
Net Worth - June 30, 1994 SS. 144. 617,
59
ATTACHMENT 1
SALVADOR E. CASELLAS
INVESTMENTS AT COST
June 30, 1994
Stocks
Banco Popular (6,145 Common)
Roig Commercial Bank (200 Common)
BankTrust (6,088 Common)
Caparra Country Club
Interstate General (4,000 Common)
Innerspace Medical Corp. (2,137 Common)
Banco Santander (3,740 pf.)
Oriental Federal Bank (2,000 Common)
Partnership Interest
San Jose Rental Housing, S.E.
Rio Arenas Ltd. Div. Ptnship.
Santa Maria Associates, S. E.
Rio Mar Associates S. E. (2 Units) Ltd.
Fiddler, Gonzalez & Rodriguez
(5 Class "A" Units) Ltd.
(2 Class "A" Units)
(3 Units) Ltd.
Securities
U. S. Savings Bonds (1993 & 1998)
U. S. Treasury Notes
Federal Farm Credit Bonds
GNMA Mortgage Serial Notes
PRASA Bonds
Puerto Rico Bonds
P.R. Telephone Co. Bonds
AFICA Bonds - 1998 (Wal-Mart)
AFICA Bonds - (San Patricio) 1999
Mortgage Trust III Bonds
CMO - Banco Santander
CMO -Citibank
Structured Mortgage Trust (1996)
R&G Fed. Mortgage Trust (1999)
P. R. Home Mortgage Trust (5.95%)
$184,350.
2,000.
117,000.
600.
26,725.
50,000.
99,000.
51.500.
$531.175.
115,000.
37,000.
15,000.
100,000.
225.000.
$492.000.
45,000.
25,000
40,000.
250,000.
50,000.
80,000.
25,000.
100,000.
100,000.
105,000.
250,000.
100,000.
100,000.
100,000.
105.000.
$1.475.000.
TOTAL
S2. 498. 175.
60
SALVADOR E. CASELLAS
REAL PROPERTY
(At cost)
June 30, 1994
ATTACHMENT 2
Apartment 2609 - Brickel Bay Club
Miami, Florida
$100,000.
Lot (917.89 m/c) and House
Urb. Gardenville, Guayanabo, P. R.
150,000.
Lot No. 29 and Villa at Isla San Marco
Palmas del Mar
200.000.
SALVADOR E. CASELLAS
OTHER FIXED ASSETS
June 30, 1994
6450.000.
ATTACHMENT 3
Personal Effects and Furniture
BMW 1990
Boat C-Hawk, 20 feet with trailer
$45,000.
21,000.
16,000,
682.500,
61
ANSWER TO QUESTIONNAIRE FOR JUDICIAL NOMINEES
I. BIOGRAPHICAL INFORMATION (PUBLIC)
Full name; (include any former names used.)
Daniel R. Dominguez Hernandez, Esq.
Address: List current place of residence and office
address (es) .
1662 Jazmin Street
San Francisco
Rio Piedras, PR 00927
Dominguez & Totti
416 Ponce de Le6n Avenue
Suite 1200
Hato Rey, PR 00919
Date and place of birth.
San Juan, Puerto Rico
July 2, 1945.
Marital Status (include maiden name of wife, or husband's
name) . List spouse's occupation, employer's name and business
address (es) .
Married to Carmen Irizarry de Dominguez on January 3, 1966.
Mrs. Irizarry de Dominguez is an attorney presently working
with the Supreme Court of Puerto Rico as Secretary of the
Judicial Conference.
Education; List each college and law school you have
attended, including dates of attendance, degrees received, and
dates degrees were granted.
Seton Hall University (Honors Program) 1963-1966
Boston University B.A. 1966-1967
University of Puerto Rico School of Law LLB, Cum Laude, 1967-
1970.
62
6. Employment Record; List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or
employee since graduation from college.
Graduated from Law School 1970 and started to work with Hector
H. Laffitte Law Offices from September 1970-1973 as an
Associate Counsel. In 1973 became Partner of Laffitte &
Dominguez Law Offices until 1980 when the law firm's name
became Laffitte, Dominguez & Totti. After Mr. Laffitte was
appointed Federal Judge, in 1983 continued as Partner of
Dominguez & Totti Law Offices until the present time.
Puerto Rican Cement Company, Inc. -(New York Stock Exchange
Cement Company) - Secretary, 1992 - to present
The Luis A. Ferre Foundation, Inc.- (Charitable institution
that administers the only accredited Museum in Puerto Rico by
the American Association of Museum) - Secretary, 1983 - to
present
The Ponce Museum of Art- (Museum of Art in Ponce, P.R.)-
Secretary, 1983 - to present
Mediafax, Inc. (Surveys of T.V. Audiences) - Secretary (1990 -
to present)
Stanford Klapper Associates, Inc.- (Commercial and industrial
products surveys) - Secretary, 1983 - to present
7. Military Service; Have you had any military service? If so,
give particulars, including the dates, branch of service, rank
or rate, serial number and type of discharge received.
Distinguished Military Student (Boston University) 1966
United States Army Reserve Artillery 26 May 1967
Distinguished Military Graduate (Boston University) 1967 -
Commissioned 1st. Lt. Honorable Discharge (date unknown)
8. Honors and Awards: List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
Honor student at Seton Hall University during the year 1965 to
1966. Graduated with Honors from the University of Puerto
Rico School of Law 1970.
9. Bar Associations: List all bar associations, legal or
judicial-related committees or conferences of which you are or
have been a member and give the titles and dates of any
offices which you have held in such groups.
Puerto Rico Supreme Court Board of Bar Examiners- Admissions
to Practice Law (1981-1984)
63
Governor Advisory Committee on Labor Policy (1984)
Board of Federal Bar Examiners for the U.S. District Court, PR
(1989-to present)
Civil Justice Reform Act Advisory Group for the United States
District Court for the District of Puerto Rico 1991-to present
Merit Selection Committee for the Appointment of U.S.
Magistrate (1993)
Committee for Judicial Reform of the Governor of Puerto Rico
(1993 - to present)
Bar Association of Puerto Rico, member (1970 to present )
American Bar Association, member (1971 to present)
Federal Bar Association of PR, member (1990 to present)
Association of Labor Relations Practitioners of P.R. - Member
(1973 to present)
Association of Labor Relations Practitioners of P.R. -
President (1990-1992)
Association of Labor Relations Practitioners of P.R. ( 1989-
1990; 1992-1994)- Director
10. Other Memberships: List all organizations to which you belong
that are active in lobbying before public bodies. Please list
all other organizations to which you belong.
Berwind Country Club and Hyatt Dorado Beach Country Club -
Golf Courses (By Laws enclosed as Exhibit I)
11. Court Admission: List all courts in which you have been
admitted to practice, with dates of admission and lapses if
any such memberships lapsed. Please explain the reason for
any lapse of membership. Give the same information for
administrative bodies which require special admission to
practice.
Commonwealth of Puerto Rico Supreme Court - 1970
U.S. Court of Appeals, 1st. Cir. - 1971
U.S. District Court of Puerto Rico - 1971
U.S. Supreme Court - 1976
U.S. Court of Appeals Federal Circuit - 1988
12. Published Writings: List the titles, publishers, and dates of
books, articles, reports, or other published material you have
written or edited. Please supply one copy of all published
material not readily available to the Committee. Also, please
supply a copy of all speeches by you on issues involving
constitutional law or legal policy. If there were press
64
reports about the speech, and they are readily available to
you, please supply them.
There are no published writings. The undersigned, as past
President and an active member of the Association of Labor
Relations Practitioners of Puerto Rico and the Virgin Islands
frequently was guest speaker in the periodic lunch meetings of
the Association. The legal issues which I was asked to address
consisted of an analysis of new labor legislation, important
state and federal labor court decisions, and current important
labor issues.
Furthermore, on several occasions I have been invited by
professors at the University of Puerto Rico to lecture on
first amendment libel matters and on judicial reform in Puerto
Rico. Professor Demetrio Fernandez requested that I lecture
together with him on first amendment libel issues and
Professor Fernando Agrait requested that I lecture his class
on the proposed judicial reform of current Governor of Puerto
Rico, Hon. Pedro Rossellb Gonzalez. (There are no written
materials. )
I have also in the past lectured at the P.R. Bar Association
on handling and defending wage and hour cases under
puertorrican law. These lectures were given together with
attorney Ruy N. Delgado Zayas, who then was Director of the
Legal Division of the Labor Department of Puerto Rico and
later became the Secretary of Labor for the years between 1988
and 1992 inclusive, and with Supreme Court Justice Peter
Ortiz, acting as Trial Judge during the Seminar. (There are
no written materials.)
As President and Director of the Association of Labor
Relations Practitioners for Puerto Rico and the Virgin Islands
I was also requested to appear before private and public
institutions to provide lectures on new labor legislation
and/or current judicial state and federal decisions. (There
are no written materials.)
I am enclosing herein Programs and/or Announcements relating
to speeches of the undersigned as guest speaker pro-bono as
Exhibit II.
(1) Symposium held at the P.R. Bar Association sponsored by
the P.R. Newspaper Writers Ass. (June 1987).
(2) Seminar on Jury Trials sponsored by the Federal Bar Ass.
of P.R. (Nov. 1988) .
(3) Bar Association Symposium on access by the press to public
documents (Oct. 1990) .
65
(4) Seminar on the Americans with Disabilities Act (August
1991) .
(5) Seminar on continued education - Labor Law Wage and Hour
claims (April 1983).
(6) Forum - How to handle labor arbitrations - Labor
Department (Agust 1981) .
(7) Public Hearings Amendments to State Insurance fund Law
(April 1987) .
(8) P.R. Labor Practitioners: New trends in handling sexual
harassment cases (August 1988) .
13. Health: What is the present state of your health? List the
date of your last physical examination.
Excellent. Last Physical Examination June 1990.
14. Judicial Office: State (chronologically) any judicial offices
you have held, whether such position was elected or appointed,
and a description of the jurisdiction of each such court.
None.
15. Citations: If you are or have been judge, provide: (1)
citations for the ten most significant opinions you have
written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or where
your judgment was affirmed with significant criticism of your
substantive or procedural rulings; and (3) citations for
significant opinions on federal or state constitutional
issues, together with the citation to appellate court rulings
on such opinions. If any of the opinions listed were not
officially reported, please provide copies of the opinions.
None.
16. Public Office: State (chronologically) any public offices you
have held, other than judicial offices, including the terms of
service and whether such positions were elected or appointed,
State (chronologically) any unsuccessful candidacies for
elective public office.
None.
17. Legal Career:
a. Describe chronologically your law practice and experience
after graduation from law school including:
66
1. Whether you serve as clerk to a judge, and if so,
the name of the judge, the court, and the dates of
the period you were a clerk:
Although I was accepted to be the Clerk of
Associate Justice of the Supreme Court Hiram Torres
Rigual for the year 1970, I did not serve because
the substituted Clerk who had an employment offer
lost the job offer. Since I had other employment
opportunities I advised Hon. Judge Torres Rigual to
continue the employment of his current Clerk.
2. Whether you practiced alone, and if so, the
addresses and dates:
From 1970 to 1973 was associate counsel at Hector
M. Laffitte Law Office.
In 1973 became Partner of Laffitte & Dominguez Law
Offices until 1980 when the law firm's name became
Laffitte Dominguez & Totti. After Mr. Laffitte was
appointed Federal Judge, in 1983 continued as
Partner of Dominguez & Totti law Offices until the
present time.
3. The dates, names and addresses of law firms or
offices, companies or governmental agencies with
which you have been connected, and the nature of
your connection with each:
Graduated from Law School 1970 and started to work
with Hector M. Laffitte Law Offices from September
1970-1973 as an Associate Counsel. In 1973 became
Partner of Laffitte & Dominguez Law Offices until
1980 when the law firm's name became Laffitte
Dominguez & Totti. After Mr. Laffitte was
appointed Federal Judge, in 1983 continued as
Partner of Dominguez & Totti law Offices until the
present time.
b. 1. What has been the general character of your law
practice, dividing it into periods with dates if
its character has changed over the years:
The general character of my practice from 1970 to
present has varied among the fields of labor,
corporate, civil, constitutional and administrative
law. I began to concentrate in federal claims in
1974.
2. Describe your typical former clients, and mention
the areas, if any, in which you have specialized:
67
The typical clients I have had are from the private
as well as from the public sectors, including
corporations, universities and government
corporations and agencies. I have specialized in
the labor, employment and civil rights law areas.
1. Did you appear in court frequently, occasionally,
or not at all? If the frequency of your appearances
in court varied, describe each such variance,
giving dates:
I have appeared as lead counsel in federal courts
since 1971 to the present regularly and frequently.
The undersigned has in excess of twenty five
published cases in the federal system and in excess
of ten cases published by the Supreme Court of
Puerto Rico.
2. What percentage of these appearances was in:
a. federal courts;
b. state courts of record;
c. other courts.
a. Federal courts: Sixty (60) percent of my
appearances in court have been in federal
court.
b. State courts of record: Thirty (30) percent of
my appearances in court have been in the state
courts.
c. Other courts: I have not appeared in any other
courts but I practice also regularly in
Federal and State Labor Relations Agencies
(10%). (NLRB, Arbitration Bureaus, NSHA, OSHA,
etc.)
3. What percentage of your litigation was:
a. civil;
b. criminal.
Almost one hundred (100) percent of my litigation
was in civil law. Although I have in the past
(1974-1980) been court appointed to handle criminal
cases: U.S. v. Nunez, 511 F 2d 874 (1st. Cir.
1975) .
68
4. State the number of cases in courts of record you
tried to verdict or judgment (rather than settled) ,
indicating whether you were sole counsel, chief
counsel, or associate counsel:
I have tried in excess of one hundred cases in the
last ten years in the federal and state systems. In
trial cases I am usually the lead counsel as the
Senior Partner of the firm; on appeal I encourage
for certain cases the hiring of co-counsel that may
have recognized expertise.
5. What percentage of these trials was:
a. jury; 0
b. non-jury. 100%
There are no jury cases in civil practice in the
Commonwealth of Puerto Rico System. The practice in
Federal Court in labor and civil rights has been in
the past five years mostly non-jury.
18. Litigation: Describe the ten most significant litigated
matters which you personally handled. Give the citations, if
the cases were reported, and the docket number and date if
unreported. Give a capsule summary of the substance of each
case. Identify the party or parties whom you represented;
describe in detail the nature of your participation in the
litigation and the final disposition of the case. Also state
as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or judges
before whom the case litigated; and
(c) the individual name, addresses, and telephone numbers of
co-counsel and of principal counsel for each of the other
parties.
A. SUAREZ V. FUNDACION ANA G. MENDEZ, 464 U.S. 879 (1983)
Organized professors seeking the modification of a
collective bargaining agreement engaged in a strike in
violation of Section 8D of the Taft-Hartley Act because of
failure to provide the previous notice of strike required
under the federal law. The undersigned represented the
University as labor counsel. Since the remedy under the
federal statute is that the striking employees lose their
condition of employment, upon termination of the strike, the
University refused to rehire them. The professors then
instituted a claim in state court alleging a violation of
their individual contracts with the University. The Supreme
Court of Puerto Rico granted all striking professors four
8
69
years of back pay plus lawyers1 fees in a majority opinion
with one judge dissenting. The case is reported at 114 lrrm
2731 (1983). The University throughout all state proceedings
alleged that the case was preempted by federal law, the Taft-
Hartley Act, and hence no state remedy of reposition and back
pay could be granted against the federal remedy of the
professors losing their status of employment for violating
federal law. The case was appealed to the United States
Supreme Court wherein the court via summary disposition
reversed in a one paragraph opinion citing the case of Local
926, International Union of Operating Engineers AFL-CIO V.
Jones, 103 St. Ct. 1453 (1983). The Supreme Court of the
United States Order is reported at 464 U.S. 879 (1983).
The undersigned handled the litigation (1980-1983) before
the National Labor Relations Board and the state trial and
appeal litigation and was co-counsel on the brief on appeal
proceedings to the U.S. Supreme Court together with the firm
of Proskauer Rose Goetz & Mendelhson of New York City,
attorney Carole O'Blenes, telephone number (212) 969-3055.
Opposing counsel were attorneys Juan F. Pagani and Juan R.
Acevedo. Telephone Mr. Juan R. Acevedo (809) 766-4233 -
address Mayaguez St. #44, San Juan, PR 00917-4915. Telephone
Juan F. Pagani (809) 765-4210 - Barbosa Avenue #602, San Juan,
PR 00917-4310. The NLRB administrative proceedings are
reported at 265 NLRB No. 3, 111 LRRM 1499 (1982).
The case is important because the principles of federal
labor preemption prevailed and the Supreme Court of Puerto
Rico was counseled as to this crucial federalism principle.
B. UNIVERSIDAD CENTRAL DE BAYAMON V. NLRB, 793 F 2d. 383; En
Banc at 793 F 2d. 398 (1st. Cir. 1985).
Professors at a Catholic University, Universidad Central
de Bayam6n, hereinafter referred to as UCB, attempted to join
a labor organization as authorized under the Taft-Hartley Act.
The undersigned represented the University, UCB.
At the NLRB administrative level the University opposed
the petition based on the Supreme Court case of NLRB v.
Catholic Bishop University, 440 U.S. 490 (1979) because there
was a potential of entanglement between the NLRB and the
University which was controlled by an Order of Dominican
Priests. The President of the University was a Dominican as
well as the majority of University trustees; lands and
buildings were donated by the Dominican Order. Dominican
Priests further controlled key managerial positions at the
University. The University further objected to the petition
based on the case of NLRB v. Yeshiva University, 444 U.S. 672
(1980) because the faculty enjoyed managerial prerogatives.
70
The 24th Region of the NLRB dismissed the defenses and ordered
an election. After certification of the results, the
University refused to bargain. The NLRB dismissed the
Catholic Bishop defense as well as the Yeshiva defense. 273
NLRB No. 138; 118 LRRM 1593 (1984). The case was then appealed
to the First Circuit Court.
Originally the Circuit Court of Boston enforced the order
in a two to one decision, 793 F 2d 383 (1985) ; however after
an en banc hearing the Circuit Court could not enforce the
order because the court was divided in a three to three
decision.
The undersigned handled all matters at the NLRB hearings
including the appeal to the NLRB in Washington, D.C. (1983-
1985) . The undersigned was co-counsel at the Circuit Court
level with the firm of Proskauer Rose Goetz & Mendelhson,
attorney Carole O'Blenes, Telephone (212) 969-3055. The
opposing counsel was counsel for NLRB General Counsel Barbara
A. Atkin, telephone number (202) 273-3700.
The case is important because the doctrine of Catholic
Bishop, a high school, was extended to universities and
further because representation petitions of the faculty of
religiously controlled universities must now comply the
doctrines of the Supreme Court cases of Yeshiva University,
Catholic Bishop and Universidad Central de Bayam6n.
C. BENNY FRANKIE CEREZO V. UNIVERSIDAD DE PUERTO RICO, U.S.
District Court of P.R., Perez Gimenez, J.D., No. 90-1323,
1990 W.L. 29796.
This case is a civil rights claim under the First
Amendment wherein an injunction was requested. In 1990 a
Committee of the United States Congress, the Subcommittee on
International and Territorial Affairs, was holding hearings
throughout the island of Puerto Rico relating to a potential
federal plebiscite election law to be held in Puerto Rico.
Congressional hearings were held in different institutions and
towns in Puerto Rico on various dates. The federal plebiscite
envisioned granted the three political formulas the right to
participate in the potential federal elections. The political
formulas were Statehood, Independence and Commonwealth.
Independence followers as well as pro-Commonwealth followers
were authorized to organize a march of sympathizers to
demonstrate support to the Congressional Subcommittee holding
hearings. When Statehood sympathizers attempted to organize as
march of sympathizers through the University of Puerto Rico,
Ponce College, where the Committee was holding hearings, the
University alleged security and property reasons, in refusing
to authorize the march of Statehood sympathizers to march
10
71
through the university through a street near where hearings
were to be held.
A civil rights injunction was filed by pro-Statehood
sympathizers. The undersigned was the lead counsel for the
pro-Statehood movement together with an associate of the firm
Enrique M. Bray, Esq. and a University Professor, Carlos Diaz
Olivo, Esq. Hr. Enrique Bray is no longer with this firm and
may be found at (809) 724-1212; Mr. Carlos Diaz Olivo may be
found at the University of Puerto Rico School of Law (809)
764-0000 (request School of Law extension). Mr. Bray's office
is now at 1250 Ponce de Leon Avenue, Santurce, PR.
The Court held that the Ponce University campus became a
"public property which the state has opened for use by the
public as a place for expressive activity" because the campus
accepted public Congressional hearings be held, hence it could
not prohibit peaceful demonstration on campus relating to said
activities.
The case once again reiterated the principle that the
First Amendment forbids governmental action "abridging the
freedom of speech" or the "right of the people to peaceful
assembly" .
Opposing counsel was the firm of Lino Saldafia, Esq.
Telephone Number (809) 766-4085. Box 13954, Santurce, PR
00908, Edif. Hato Rey Tower, Munoz Rivera 268, Hato Rey, PR.
D. CUESNOGLE v. RAMOS, 835 F 2d. 1486 (1st. Cir. 1987)
This case is the treatise of Pennhurst abstention of the
First Circuit Court of Appeals.
The case involves a consumer affairs state agency attempt
to regulate a University. A strike by professors had
shortened a semester period; a group of students filed a
complaint seeking partial reimbursement of tuition in the
Ccnsummer Affairs Department of Puerto Rico.
The case was originally filed at the U.S. District Court,
was then appealed to the Circuit Court, remanded to the U.S.
District Court, after judgment once again appealed to the
Circuit Court which certified a question of local law to the
State Supreme Court and finally when the Supreme Court of the
State refused the certificate was decided by the Circuit Court
at the above citation.
The undersigned represented the University, Universidad
Central de Bayam6n (UCB) , only in proceedings at the Circuit
Court of Appeals in 1987 after the Supreme Court of Puerto
11
72
Rico decided to refuse the certification request made by the
Circuit Court of Boston. A Memorandum on the effect of the
refusal of the Supreme Court of Puerto Rico on accepting the
certification was prepared by the undersigned and attorney
Juan M. Garcia Passalacqua, telephone number (809) 758-5029,
Parque de las Fuentes Condominium #503, Hato Rey, PR 00918.
After issuing a twenty page opinion the conclusion of the
court was the following:
"Our disposition here is ironic. Appellant may well be
correct that DACO misread the University Catalogue to
guarantee tuition reimbursement when classes are cancelled.
UCB may also be correct that DACO's organic statute does not
provide that agency jurisdiction over university matters. Yet
after six years of litigation, UCB's federal claims, have been
finally rejected. We regret that we have had to reach this
point in a case where a simple contract interpretation might
have resolved the controversy."
Opposing counsel was Mejori Rivera Rodriguez, Acting
Solicitor General of the Department of Justice. I do not know
her current address or phone number because after resignation
from the Department of Justice, her whereabouts are unknown by
the Department of Justice.
E. FLORENCIO ROMAN, INC. v. CTMT, 614 F 2d. 9 (1980)
This case is an appeal to a verdict rendered to a
consignee for damages to several maritime shipments of fruits
and vegetables. The undersigned represented appellees-
plaintiff. Defendant maritime company, appellant, was
represented by Hon. Jose A. Fuste, now U.S. District Judge in
Puerto Rico, telephone number (809) 766-5774; U.S. District
Court, Chard6n Avenue, Hato Rey, PR 00919.
The case is important only because the First Circuit
Court corrected under COGSA Law, Carriage of Goods by Sea Act,
46 USCA 1300-1315, unexplained and unjustified expansions of
the defense of "shippers load and count" contained in
jurisprudence being frequently cited by the District Court of
Puerto Rico. The Circuit Court further cited the long standing
principle that factual matters are usually not entertained on
appeal .
The case was tried in the U.S. District Court of P.R.
before visiting judge George Templer, Senior District Judge.
12
73
F. EL DIA, INC. V. HERNANDEZ COLON, 963 F 2d. 488 (1992)
This case is a First Amendment Civil Rights complaint
filed by the publisher of a major Puerto Rico newspaper
against the Governor of Puerto Rico for the enactment of an
executive order which severely curtailed access to public
documents. In another litigation amongst the same parties and
on the same issue an injunction was filed and a TRO granted
under state law by the Superior Court of Puerto Rico, San
Juan Section, Civil No. KPE 91-0999 (907). The District Court
of Puerto Rico, Perez Gimenez, J.D., granted the injunctive
relief because the executive order impermissibly chilled
expressions, thwarted freedom of the press, contravened due
process and undercut freedom of the press. The District Court
Opinion is at 783 F. Supp. 15 (D.P.R. 1991). The Circuit Court
reversed stating that the federal court should have abstained
from issuing a declaratory judgment injunction because there
already was a parallel state litigation which had granted a
TRO based on state law. Further the court stated that
constitutional rights should generally not be adjudicated via
Declaratory Judgment specially since the constitutional right
under the First Amendment of access to executive documents is
not a clear right. The court provided other reasons for
abstention, however, the underlying major criteria was that a
TRO had been issued in a parallel litigation amongst the same
parties but under state law. Unfortunately the Circuit Court
did not explain or distinguish this case from the case of
Rojas Hernandez v. Puerto Rico Electric Power Authority, 925
F 2d. 492 (1st. Cir. 1991) and the case of Villa Marina Yacht
Sales Inc. v. Hatteras Yachts, 947 F 2d 529 (1st. Cir. 1991)
wherein based on the case of Colorado River Conservation
District v. U.S., 424 U.S. 800 (1975) the court stated that
parallel state litigation should not suppress federal
jurisdiction because of the "virtually unflagging obligation
of the federal courts to exercise the jurisdiction given
them" .
The TRO granted under state law in state court became
latter a permanent injunction, was appealed to the Supreme
Court of P.R. wherein the case became moot when the new
Governor of Puerto Rico, Pedro Rossell6, rescinded the
executive order.
Counsel for the opposing party was Lino Saldafia, Esq.,
Telephone Number (809) 766-4085, Box 13954, Santurce, PR
00908. The undersigned represented El Dia, Inc. in state
proceedings and in the U.S. District Court and was co-counsel
with attorney Susan Garsh of the firm of Bingham Dana & Gould
of Boston, Mass. Ms. Garsh is now a State Judge in the
Massachusetts system. Her telephone number is (508) 453-7032;
(617) 725-8130.
13
74
G. CARIBBEAN PRODUCE EXCHANGE, INC. V. SEA LAND SERVICE,
INC., 415 F. Supp. 88 (1976) J. Torruella J.D.
This case is a cargo claim under the Carriage of Goods by
Sea Act, 46 USCA 1300-1315 tried at the U.S. District Court
level on admiralty jurisdiction. The maritime company provided
a special service for its customers consisting of a controlled
atmosphere in its refrigerated vans using nitrogen and oxygen
to delay the ripening of the fruit. The Company although
charging additional amounts of freight for the controlled
atmosphere service notwithstanding in the published tariff
declined any and all liability to the customer who used the
service. Caribbean Produce used the controlled atmosphere
service called oxytrol; the fruits, however, arrived in Puerto
Rico spoiled. The maritime company defended the case based on
the limitation of liability contained in the tariff. The court
found the limitation of liability invalid because no carrier
under COGSA Law can limit its liability beyond the authority
of the federal statute.
The undersigned handled all litigation in this case
including a proposed Judgment Order that was signed by Judge
Torruella, now Circuit Court Judge for the First Circuit.
Counsel for the opposing party was Hon. Jose A. Fuste, now US.
District Judge for the District of Puerto Rico, Telephone
(809) 766-5774, U.S. District court for Puerto Rico, Room 150
Federal Building, Carlos Chard6n Avenue, Hato Rey, PR 00918-
1767.
H. U.S. V. RALSTON DOUGLAS NUNEZ, 511 F2d 871 (1975)
The undersigned was court appointed counsel of defendant
a copilot of a small plane. The copilot, a Jamaican, was in a
flight from Jamaica to Beef Island, British Virgin Islands.
The copilot did not have any knowledge when he accepted the
flight that 375 lbs. of marijuana were inside suitcases in the
cargo deck of the plane. The plane had only visual flight
equipment; that plane got lost and landed in Puerto Rico
without fuel and under distress. After refueling, upon taxing
to leave, without making any attempt to unload any of its
cargo, the plane was boarded by customs agents who found the
marijuana. The pilot and copilot were charged with violations
of importation of marihuana and possession with intent to
distribution of said illegal substance.
Using by analogy cases of cargo maritime vessels in route
from England to Canada during the Liquor Prohibition Era
landing in distress in the northeastern section of the United
States, the Circuit Court held that customs agents did not
have a right to search and seize cargo. No attempt was made
to off-load from the plane cargo or passengers and the plane
14
75
was only pursuing an emergency refueling further the plane was
complying with its intent to depart.
Although the reporting by West Publishing of this case
indicates that the trial Judge was Jose V. Toledo erroneously;
the case was heard by visiting Judge Murray. Judge Jose Toledo
sat on the prior to trial hearing of suppression of evidence.
The undersigned handled the trial (2 days) and the appeal
to the Circuit Court. Counsel for the Attorney General was
Jorge Rios Torres, Esq. who is no longer in Puerto Rico
assigned to the office of the Attorney General in Washington
D.C.
I. JRT V. P.R. TELEPHONE COMPANY, 107 D.P.R. 76 (1978)
This case involves the enforcement of an arbitration
award at the Puerto Rico Labor Board. The decisions of the
Labor Board are appealable to the Supreme Court of Puerto
Rico. (Since this case is published officially in Spanish an
official translation is enclosed as Exhibit III.)
The undersigned represented the Puerto Rico Telephone
Company both at the Labor Board and at the Supreme Court. The
underlying arbitration case was tried by other prior counsel
of the Telephone Company.
Puerto Rico Labor Relations Law and federal labor
relations law favor the rapid disposition of unfair labor
practices. In Puerto Rico pursuant to the case of Buena Vista
Dairy v. JRT, 94 D.P.R. 624 (1967), it was established that a
reasonable time to file cases pursuant to arbitration
procedures that had no specific terms was six months.
Notwithstanding the above, there was an old case in Puerto
Rican Jurisprudence, Junta v. Long Construction Co., 73 D.P.R.
252 (1952), that held that arbitration awards could be
enforced within a period of fifteen years.
The instant case reversed Junta v. Long, supra, in that
henceforth arbitration awards must be enforced in a reasonable
period of around six months.
Opposing counsel was counsel for the P.R. Labor Board
Jose Velaz Ortiz. He is now in private practice. His telephone
number is (809) 767-7911. Cond. Midtown Suite B4, Muftoz
Rivera 421, Hato Rey, PR 00918.
According to Shephard's P.R. Citations this case has been
latter cited at least ten times by the Supreme Court of P.R.
and by federal courts in P.R.
15
76
J. ROMAN CRUZ V. DIAZ RIFAS, 113 D.P.R. 500 (1982)
This is a leading case in Puerto Rico Law involving
judicial conduct of a trial judge in signing without proper
analysis a proposed Opinion and Order prepared by one of the
litigants. (Since this case is published in the Spanish
language an official translated opinion is enclosed as Exhibit
IV.)
The undersigned handled this case as co-counsel together
with attorney Jose A. Fuste, now U.S. Federal District Judge.
The case was referred originally to the firm for trial by
attorney Jose A. Fuste due to the labor expertise of the firm
of Laffitte & Dominguez.
The case involved a wage and hour claim together with a
severance claim filed at the highest trial court level,
Superior Court. The undersigned represented the employer. As
noted by the Supreme Court, the allegations of the complaint
hinted that plaintiff would not prevail in the wage and hour
overtime complaint because he was an exempt foreman, and would
not prevail in the severance claim because the business was
forced to close due to valid economic reasons.
Prior counsel in the case had filed a motion requesting
extension of time without swearing the same which under
Puerto Rican Labor Law is insufficient. Notwithstanding, the
firm of Laffitte & Dominguez retained after the motion of
extension of time on the 14th of December 1981, sent via mail
an answer to the complaint prior to plaintiff's request of
default on the 15th of December, 1981. An unsuccessful
personal filing attempt had been made by the firm of Laffitte
& Dominguez to file the answer to the complaint on December
14, 1991 in Utuado, a town located in the middle of the
countryside of Puerto Rico, where the complaint was filed. The
failure to personally file was due to a flooding that occurred
in Puerto Rico that affected access to Utuado. The answer to
the complaint was filed on the 17th of December, 1981.
Six months elapsed before the Trial Judge responded to
all pending matters. The court had pending the following: (1)
a Motion seeking extension of time (2) Motion informing new
legal representation (3) Motion requesting default (4) Answer
to complaint (5) Motion in opposition to default.
On June 30, 1982 the court notified a Judgment favoring
plaintiff dated December 10, 1981 of $44,892.00 and $10,000.00
in attorneys' fees. In said judgment the court describes
documents that had not yet been filed in court by plaintiff.
The Supreme Court reversed the judgment finding that
defendant had acted diligently in attempting to timely file an
16
77
answer and admonished the trial court for signing a Proposed
Judgment Order without making a proper analysis of said
j udgment .
After the reversal, the trial judge was transferred and
he resigned shortly thereafter.
The undersigned was trial counsel and co-counsel with
Jose A. Fuste at the Supreme Court Proceedings. The telephone
number of U.S. Federal Judge Jose A. Fuste is (809) 766-5780.
The address of the Federal Court is U.S. District Court for
Puerto Rico, Room 150 Federal Building, Carlos Chard6n Avenue,
Hato Rey, PR 00918-1767.
Counsel for the opposing party was attorney Luis A.
Torres Rodriguez, Telephone (809) 894-1527. Box 827, Utuado,
PR 00641.
This case according to Shephards P.R. has been cited at
least eleven times by the Supreme Court in latter decisions
and P.R. federal courts after issuance of the original
opinion.
19. Legal Activities: Describe the most significant legal
activities you have pursued, including significant litigation
which did not progress to trial or legal matters that did not
involve litigation. Describe the nature of your participation
in this question, please omit any information protected by the
attorney-client privilege (unless the privilege has been
waived.) :
The undersigned has been private counsel on constitutional
matters that did not involve litigation for three Puertorrican
governors that support statehood for Puerto Rico. The
undersigned represented governor Luis A. Ferre in the early
nineteen seventies, governor Carlos Romero Barcel6, now Puerto
Rico Resident Commissioner, during the late nineteen seventies
and early eighties and now current governor Pedro Rossello
Gonzalez. Important constitutional issues between the governor
and the legislature and the judicial branch have been
consulted with the undersigned.
The undersigned was recently appointed by the Governor to an
executive committee charged with the responsibility of
proposing a reform of the judiciary in Puerto Rico. The
members of this committee included the Governor of Puerto
Rico; the Chief Justice of the Supreme Court; the President of
the Senate; the Speaker of the House and another practicing
attorney.
The committee made a recommendation to the legislature on a
Judicial Reform Law which was eventually adopted. In essence,
17
78
the Judicial Reform Law consolidates existing trial courts and
establishes a Court of Appeals. The law affords litigants to
appeal hitherto available only in criminal cases.
Although the support for the law eventually enacted was not
unanimous, the recently created right to appeal in all cases
will be welcomed by litigants in Puerto Rico.
The undersigned has been a lecturer at the invitation of the
P.R. Bar Association and other civic organizations like the
Puerto Rico Journalist Association on First Amendment and
labor law matters as part of professional continuing
education. Sharing my professional experience and knowledge
with others has been one of the most rewarding experiences in
my career.
As a management labor attorney the undersigned bargains with
union representatives between six to ten labor agreements per
year. Some years as many as twelve labor agreements are
bargained. It is gratifying that most of the labor
negotiations that the undersigned has handled have resulted in
agreements reached without there being industrial strife among
the parties.
18
79
IZ. FINANCIAL DATA AMD CONFLICT OF INTEREST (PUBLIC)
1. List sources, amounts and dates of all anticipated receipts
from deferred income arrangements, stock, options,
uncompleted contracts and other future benefits which you
expect to derive from previous business relationships,
professional services, firm memberships, former employers,
clients, or customers. Please describe the arrangements you
have made to be compensated in the future for any financial
or business interest.
I am the Senior Partner in Dominguez & Totti Law Offices;
should I be appointed I shall resign to the Partnership. I
have also in excess of $600,000.00 accumulated under the
Pension Plan of Dominguez & Totti. Should I be appointed
said income is to be distributed to me.
2. Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the categories
of litigation and financial arrangements that are likely to
present potential conflicts-of-interest during your initial
service in the position to which you have been nominated.
There are no potential conflicts of interest foreseen at
this time. However, should any arise it will be resolved in
proper manner assuring that even the slightest appearance of
impropriety is avoided. I shall follow the guidelines of
the Code of Judicial Conduct.
3. Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during
your service with the court? If so, explain.
No.
4. List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more (if you prefer to do so
copies of the financial disclosure report, required by the'
Ethics in Government Act of 1978, may be substituted here.)
See attached Financial Disclosure Report.
5. Please complete the attached financial net worth statement
in detail (Add schedules as called for) .
80
See enclosed Financial Statement from outside auditors plus
1992 audited Financial Report (in the Spanish language).
Have you ever held a position or played a role in a
political campaign? If so, please identify the particulars
of the campaign, including the candidate, dates of the
campaign, your title and responsibilities:
No.
81
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some time to participate in
serving the disadvantaged". Describe what you have done to
fulfill these responsibilities, listing specific instances and
the amount of time devoted to each.
During the early years of my professional career 1970-1972 the
undersigned was a participant in a legal assistant program
sponsored by the Puerto Rico Bar Association which provided
free of costs legal assistance to the island's
underprivileged. I was assigned one evening every two weeks
for several months to provide services for citizens residing
in low income public housing. We were also appointed by the
Federal Court from 1975 to 1980 to defend indigents in several
criminal cases. U.S. v. Ralston Douglas Nunez. 511 F.2d 871
(1st Cir. 1975) . Also early in my career we were several
times court appointed to defend social security claims of the
indigent.
I currently provide ad honorem counseling for Centros Sor
Isolina Ferre, a religious organization providing community
services to the poor and underprivileged in the Ponce area of
Puerto Rico. Centros Sor Isolina Ferre is well known in
Puerto Rico for working in the prevention of youth drug
addiction and juvenile delinquency in the underprivileged
communities of Puerto Rico.
The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a judge
to hold membership in any organization that invidiously
discriminates on the basis of race, sex, or religion. Do you
currently belong, or have you belonged, to any organization
which discriminates — through either formal membership
requirements or the practical implementation of membership
policies? If so, list with dates of membership. What you have
done to try to change these policies?
No.
Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts? If
so, did it recommend your nomination? Please describe your
experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to
your nomination and interviews in which you participated) .
82
There is no selection commission in Puerto Rico for vacancies
in the federal judiciary. I was advised by Governor Pedro
Rosselld that prior to recommending the undersigned to
President Clinton for one of the vacancies in the federal
judiciary in Puerto Rico he consulted with practicing lawyers,
judges and civil leaders. After Governor Rosselld' s
recommendation was submitted to President Clinton, I received
a letter from the Associate Counsel of the President including
several forms to be completed and advising of being considered
for a potential nomination. After the forms were completed I
was interviewed on the phone on several occasions by the
Counsel to the Deputy Attorney General and subsequently was
interviewed in Washington D.C. by the Assistant Attorney
General and the staff of said office. Subsequently I was
interviewed by agents of the Federal Bureau of Investigations.
After completing American Bar Association forms, I was
interviewed in Philadelphia, Pennsylvania by the Bar
Association's representatives to determine qualification as a
potential nominee. I was nominated shortly thereafter in June
21, 1994 by President Clinton.
4. Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
interpreted as asking how you would rule on such case, issue,
or question? If so, please explain fully.
No.
5. Please discuss your views on the following criticism involving
"judicial activism".
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism that
alleges that the judicial branch has usurped many of the
prerogatives of other branches and levels of government. Some
of the characteristics of this "judicial activism" have been
said to include:
a. A tendency by the judiciary toward problem-solution
rather than grievance-resolution;
b. A tendency by the judiciary to employ the
individual plaintiff as a vehicle for the
imposition of far-reaching orders extending to
broad classes of individuals;
c. A tendency by the judiciary to impose broad,
affirmative duties upon governments and society;
83
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness ; and
c. A tendency by the judiciary to impose itself upon
other institutions in the manner of an
administrator with continuing oversight
responsibil it ies .
Under the Constitution federal courts must decide "cases
and controversies". The basic function of the judicial branch
is that of adjudicating specific controversies. Sometimes the
nature of those cases and controversies, go beyond the
specific interest of the litigants and thereby have far
reaching consequences. The vision of the federal judiciary of
the undersigned is that the judiciary should solve the
specific questions possed by the litigants involved. The
undersigned does not favor the federal judiciary to be active
in problem solutions as opposed to grievance solutions unless
explicitly mandated by congressional legislation. The
resolution of social problems is a policy matter entrusted to
the legislative and executive branches of the government.
Broad reaching orders extending to broad classes should be the
exception and is justified only when a matter constitutes a
fundamental constitutional right which may affect a broad
class of individuals that may properly be represented at the
litigation. Broad orders against the government should not be
the general rule unless it is a matter of a fundamental
constitutional right or a crucial civil right. Considering
that new federal laws are constantly enacted creating new and
diverse federal causes of action there should not be a
loosening of standing and ripeness jurisdictional
requirements. Further, at the district court level justices
are bound by precedent and therefore the district court may
not create standards more stringent nor loosen the
constitutional standard. Ordinarily legal precedents are not
established at the trial level but at circuit and supreme
court appellate levels.
84
INDEX TO EXHIBITS
1. By Laws submitted in relation to answer to Part I question
number 10, Exh. I
2. Documents related to Part I question number 12, Exh II
3. Copy of case submitted in relation to answer to Part I
question number 18(1), Exh. Ill
4. Copy of case submitted in relation to answer to Part I
question number 18(J), Exh. IV
5. Documents related to Part II, Exh. V
85
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all assets (including bar
accounts, real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debt
mortgage*, loans, and other financial obligations) of yoursell. your jpous*. and other Immediate member* .
your household.
AS OF DECEMBER 31, 1993.
UABIUTIES
Ca»h on h»nd and In b*"Ki
U.S. Covimmint iwjnor
BCheduta
Ud*d ucu^n-*^ tchedvle
Unfitted aeeurlilea — add eo»adule
A&eounci end note? receivable;
Owe Irorn iftitim end friendl
Ou« from others
Doubtful
Rill term 0"*ned— add tchtduittl
ftul ettjla mortgagee receivable
Autot and wher p«iwii property
Cjth vi'ur — tift Iniunnca
Ot*er IlicU— Jttmlic
IPft ftrrniinfa
rtotaa ptyebla to bentj. tecured
Notes parioU* to tento— vmecureg
HolM para ft to rellUvex
Notes payable to other*
Accounts and fc'iii due
Unpaid Interna tii
Cnr>e, unpaid Ui end Interest
Rail Mm morrfifei {unbie— add
ached wta
C»\«tt«i mortt<|ei and other iim,
payable
Oilier debts— (Urntla:
Total tlabititiai
Hat worth
Total litblllUea md n*t wenh
CENERAl INTORMATtON
Aa endorser, comaker or guarantor
On lutes or convicts
Lestl Claims
vmon tor Tedaral Income Tti
Other epeclel debt
Are eny ajj-rtj pledged} <Add ached
"'•> Schedule 12
An you defendant In any wits or
Itj. i actlontf
Have you ever taken bankruptcy?
86
«HSON JQHIS vUMTAHV
,rr.
W±
87
FINANCIAL DISCLOSURE REPORT ^a?^25S
Uio Stblca
Xl. I. le.
" Itlt
(J U.t.C.i. iff. «, 11101-11])
. Poxaoo aoportlog. (Loot mm, fir,t, aldd'lo ioltl.l)
DCMDGJEZ, DANIEL R.
t. Tltlo lArllclo III 'udo.i I
oooior wtui; Mogl
roll- or (trl-tl»l!
•■ indict. «etlvo or
iuiu Judgoa ledlc.t*
FEDERAL DISTRICT COURT JUDGE
2. Court or Orgaalsatloa
UNITED STATES DISTRICT COURT
S. Roport Typo (chock appropriate typo)
» ■oauutlon. Data 6-? 1.0,4
X Iiltlll JUiflaal riul
J. Doto of koport
JUNE 27,1994
<. ILaportlag Period
Jan. 1, 1994
May 27, 1994
t, Ch*ml*Tn or Of flea XdOr»i«
Office: Ponce de Le6o 416
Suite 1200, Hato Rey, PR 00919
On za» &*•!■ of too lafonatloa coatalaad la this Raport, It
la, id ay oplDloo, la, coapllaaca vita •ppllcaalo lava aad
regulation* _ —
Havlaviao Offlear tlgrutara
IMPORTANT NOTESi The instructions accompanying this form must be followed. Complete all parti,
checMhaj the NONE box for each section where jon hare no reportable fnfbrnatfcm. 55gn on last page.
POSITIONS. (Reporting individual only; sec pp. 7-S of Instructions.)
3
POSITION
NONE (fo roportaslo poamooa)
PARTNER
SECRETARY
SECRETARY
NAME OF ORGANIZATION/ENTITY
DOMINGUEZ & TOTTI (LEGAL PARTNERSHIP)
STANFORD KLAPPEr & ASSOCIATES, INC.
PUERTO RICAN CEMENT COMPANY, INC.
SECRETARY
SECRETARY
THE PONCE MUSEUM OF ART
MEDIAFAI. INC.
I. AGREEMENTS. (Reporting individual only, sec p. 8-9 of Instructions.)
DATE PARTIES AND TERMS
NONE Ho roporublo agro
II. NON-INVESTMENT INCOME. (Reporting Individual aw) spouse; see pp. 9-12 of Instructions.)
PATE SQVRCE AND TYP E GROSS INCOME
(Honoraria only) (yours, not spouse's)
_]
NONE (to raportaala doc- leva* taaot lacoa*))
lifi
1993
Compensation far Prnfemlonal Services ao
Partner of Domfnguez & Totti
.Conference _
supreme Court of Puerto Rico
enjULt
Xftn
at ion for
JiMsTciaTc
Court of ]
Office ofthe Secretar iat,
$234,383, J}
$ 45,357.00
4 1994
Compensation for Professional Services as
1994
(Five Months)
ompensation for Services ( Spouse 1 as Director » .anon -i*
t tne Judicial Conference Office of the Secretariat,
Partner of Domlnouez • Totti
$105,703.02
$
7
s
Supreme Court of Puerto Rico (Five Months)
88
FINANCIAL DISCLOSURE REPORT (cont'd)
P*m of r*r»oa teportlaa.
DOMINGUEZ, DANIEL R.
Bat* of Boson
JUNE 27, 1994
/. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.
(Include* IboM to spouse ■do' dependent children: use the parentheticali *(S)' and '(DC)' to Indicate reportable
reimbursement* and gifts received by •pouse and dependent children, respectively. See pp. 13-1$ of Instructions.)
3
SOURCE
piSCRPTtON
NONE (Bo such rsportsols rslaburssBOSts or gifts)
Exempt
V. OTHER GIFTS. (Include* tho«e to spouse and dependent children; use the parenthetical* *(S)' and '(DC)* to
Indicate other gifts received by spouse and dependent children, respectively. See pp. 15- 16 of Instructions.)
SOURCE DESCRIPTION VALUE
I NONE (Bo neb rsportsbls gift*)
Exempt
$.
$.
$.
S
VI. LIABILITIES. (Include* those of spouse and dependent children; Indicate where applicable, person responsible
for liability by using the parenthetical *(S)' for separate liability of spouse, '(J)' for Joint liability of reporting
Individual and spouse, and '(DC)' for liability of a dependent child. See pp.l£U oCInstructlons.)
□
CREDITOR
NONE (Bo rspartsbls llskllltlss)
Popular Leasing (J)
DESCRDTION
Automobile (Spouse)
VALUE CQDE«
:.— ■■
• tse.tei to iioo.oos a • 1100,001 1» tiso.ooo
.A
» • lis.ooo or ims " « • »is,ooi to ijo.ooo ,. '■ ■■".;* - t»,««i to tioo.ooo
I • I JS0.001 to IJOO.OOO 0 - IS00.001 to 11,000,000 t • acts UMs Sl.OOO.OOO
89
FINANCIAL DISCLOSURE REPORT (coofd)
ff4M of rorooo teportlM
DCMDOJEZ, DMOH. R.
Data of lUport
JUNE 27, 1994
I. INVESTMENTS and TRUSTS - income, value, transactions, (includes those or mmm
■Ad dependent children; see pp. 18-27 of Instructions.)
D**crlptloa of JUaata
(lAclHlag truat umu)
durlog
9reai
at 1
e.
valoo
mo of
— JTJ —
0.
TruMstloaa daring nportlaa poxlod
ft*
rHtf
WB
»»1U)
til..
ft
raai aiacjoaur*
truhotloa)
"""1 NONE (»o r»port*bla
iflco— , aaaata, or
1 traaaaotlooa)
EXBtfT
LAW FIRM PENSION PLAN
0
T
CHASE MANHATTAN hank
S/A # 707-008140-6
j
T
FIRST FEDERAL SAVINS
«^a * is_rvi-O0?0on'»7S
J
T
CN^gCJyOC^Kr (OASE)
j
T
^Sc£^<™>
j
T
PARTNERSHIP VALUE IN THE
rOM QT KMINGUEZ& IUIT1
M
0
U
e
.1
3
a
14
IS
IS
it
IS
It
M
1 laooaa/Oua Coomi i-u,ooo oz leu »-ji.ooi to w.JOo c-si.soi to s.oea d-« mi to sis ooo
j Tola* coomi JM19.000 or Ion MU.&H U, Isi.Uo I«Ho.MI to llitToM — B-iToi KPta TB Mo —
j it ^'iiiHiJ'1 -rci"*-001 w ,50*wo ?M»oo.ooi jo't,:ooo.ooo p-io*; <*.. i?:s»°£o "'*>•«» *• «w.w*^
J Tola* Xotkoo coomi g-AfpriiMl Moot ro*I o.uio only (■Uinuw' <-"«"« ^
{•«• eel. a) u-sook «i1m v-otbor v-iotloota* !• .
90
FINANCIAL DISCLOSURE REPORT (cont'd)
Vaaa of Veraoa Reporting
DOHINCUEZ, DANIEL R.
Data of topon
JUNE 27, 1994
II. ADDITIONAL INFORMATION or EXPLANATIONS. (fata** put <x Report.)
<. CERTIFICATION.
In compliance with the provisions of 28 U.S.C 8 455 and of Advisory Opinion No. 57 of the Advisory Committee on
ididal Activities, and to the best of my knowledge at tbe time after reasonable inquiry, I did not perform any adjudicatory
action in any litigation during tbe period covered by this report in which I, my spouse, or my minor or dependent children
id a Bnaadai Interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I certify that all information given above (including information pertaining to my spouse and minor or dependent children,
any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was
iihbeld because it met applicable statutory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
rported are in compliance with tbe provisions of 5 U.S.CA. app. 7, 8 501 et seq., 5 U.S.C 8 7353 and Judicial Conference
gula lions.
ignature ,
~5ZZ-A
Due
i/*p/9y
IOTE: ANY rNDIVTDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
1AY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA APP. 6, 8 104, AND 18 U.S.C 8 1001.)
FILINO INSTRUCTIONS:
Mail signed original and 3 additional copies to:
Judicial Ethics Committee
• -.,: ■. ■■: i
Administrative Office of the
United States Courts £>r*.
Washington, DC 20544
' . ',;' ' ' . <
K * V » 5 . ' '■» v
.>-.' ... •
91
AUDITED FINANCIAL STATEMENT DATED 12-92 (IN SPANISH)
LCDOS. DANIEL ». DOMINOUEI T
CARMEN IRIIARRT DE DOMINQUEl
ESTADO DE CONDICION FINANCIERA
31 DE DICIEMBRE DE 1992
Roberto F. FoktuSo
C'KRTIKIKIl Pl'HIJC AtfOlNTAXT
92
LCDOfl. DAMIBL K. DOMIMOUBI T
CMMM IWI'AIWT Dl DOMIMOOll
kstado de common fimamcikra
31 DK DICIKMBRE Dl 1992
CQMTEHIDO
Reports Compilado del Contador 1
Estado de Condicidn Pinanciera 2-3
Not as al Estado. de Condicidn Financiers 4-7
Roberto F. FortuSo
Ckrtikikii Pi 'Bi.it1 Acmm'xtast
93
t'KKTIKlKU Pi BLIC AtTOfXTAXT
I.VKIil riUIMK VWIIJMM.
srrrti m
MM I I1KOH.V& I* tMTllHHD
Tti. iao»t m«-a»rj
r\x man m nerr
REPORTE COMPILADO DEL CONTADOR
Lcdos. Daniel R. Doalnguei y
C«nMn Irizarry de Dominguez
Be coopilado el estado de condicidn financlera adjunto de loe
Lcdoe. Daniel R. Dominguez y Carmen Irizarry de Domlnguez al 31 de
diciembre de 1992. Esta compilacidn fue hecha de acuerdo con las
normas sstablecidas por el Institute- Americano de Contadores
poblicos Autorizados.
La compilacidn de unos estados financieros consists en, y
esta limitada a, presenter en forma de estados financieros,
informacidn que es representaci6n de los Lcdos. Daniel R. Dominguez
y Carmen Irizarry de Dominguez. Ho be auditado o revisado los
estados de coDdici6n financlera que se aconpafian y por tanto, no
expresoopinidn ni ningtln otro tipo de seguridad sobre los mismos.
Roberto P. Fortufio
San Juan, P.R.
El sello nomero 1130735
del Colegio de Contadores
Poblicos Autorizados fue
adherido a la copia del
archivo de este reports.
16 de febrero de 1993
94
I^PQg. DAMIBL K. P0HIMQUB1 I
KBTADO M COMDICIOM riWAMCIBRA
31 DB DICIEMBRB DE 1992
(Ref Urate al Report* Coapilado del Contador)
ACTIVO
Efectivo $ 39,045
Valor en Efectivo de Poliza de Seguro
de Vida (Mota 2) 17,000
Cuentas de Retiro Individual 47,808
Benef icios Acumuladoe en Plan de Pension (Not a 4) 567,295
Inversidn en Bienee Ralces (Note 5) 50,000
Participacidn en el Activo Heto de la Sociedad
Profesional Dominguez k Totti (Mota 6) 183,420
Residencia (Hota 1) 450,000
Eobarcaciones (Nota 1) 70,000
Mobiliario (Mota 1) 35,000
Efectos personales y joyas (Hota 1) 75,000
Objetos de Arte (Mota 1) 15.000
$ 1,549,568
Las notas que se acoopafian son parte integrante de este estado de
condicion financiera sin auditar.
Roberto F. FortuSo
CKRTIKIKII Pl-HI.lt' At'fOlNTANT
95
LCDOS. DAMIEL R. DOMIMQUgt T
CUBm iriiarrt pi BflMUMBBI
1STAD0 DE COHDICIOM FINANCIERA
31 DE DICIEMBRE DE 1992,
(Refiirase al Report* Conpilado del Contador)
PASIVO
Obligaciones por Pagar (Nota 7) $ 85,563
ESTIMADO DE CONTRIBDCION SOBRE INGRESOS SOBRE
LAS OIFERENCIAS ENTRE EL VALOR CORRIEMTE
ESTIMADO DE LOS ACTIVOS Y SOS BASES
CONTRIBUTIVAS (Nota 8) 186,143
CAPITAL NETO 1.277.862
$ 1,549,568
Las notas que se aconpafian son parte integrante de este estado de
condicion flnanciera sin auditar.
Roberto F. FortuSo
C'KKTIKIKI) Pl'HI.IC ACCOIXTAXT
96
T^enOfi. DAMIKL R. DOMIMQUBt T
CABMM IRHAKRT PI DOMIMOUE1
MOTAS AL ESTADO DB COKPICIOM PIMAHCIERA
?1 DE DICIEMBRE PE 1992
Nota 1 Tnformacion General
El estado de condicidn f inanciera que se acompafia incluye
I08 recur sos y obligaciones de la sociedad de gananciales
del llceDclado Daniel ft. Domlnguez y eu eeposa, la Lcda.
Carmen Irlzarry de Domlnguez. El mlsmo esta presentado
a su valor corriente estimado usando el metodo de
acumulacidn. Los valores corrientes estimados de los
activos tales como la residencia, mobiliarlo, objetos de
arte, embarcaciones, efectos personal es y joy as son
basados en la apreciacidn personal del Lcdo. Daniel R.
Domlguez.
Hota 2 Valor en Efectivo de P61iza de Seouro de Vlda
Al 31 de diciembre de 1992, el licenciado Daniel R.
Domlnguez mantenia una poliza de seguro de vida con The
Manufacturers Life Insurance, Co. con una cubierta de
$300,000. El valor de rescate de dicba poliza era de
$17,000 a la fecha de estos estados.
Nota 3 Cuentas de Retiro Individual
Las cuentas de retiro individual se mantienen, en varias
in6tituciones financieras, todas localizadas en Puerto
Rico, con intereses que fluctttan entre un 7.0% y un
10.00% anual.
Hota 4 Beneficios Acumulados en Plan de Pension
El valor corriente estimado de los beneficios acumulados
de los licenciados Daniel R. Domlnguez y Carmen Irlzarry
de Domlnguez es el precio de los valores que componen
dicho plan, determinado a la fecha del estado de
condicidn financiera por The Wyatt Company, la casa
administradora del plan.
Roberto F. FortuSo
CKRTIKIKI) Pl'BI.K* Al't'OlNTANT
97
Hota 5
LCDOS. DAM1EL R. DOM I ■ QUE I T
CMBBB IRI1ARRT Dl POMIHOUBI
MOTAS AL ESTADO DB COWPICIOM MHAMCIBRA
31 DE DICIEMBRB DB 1993,
Inversidn en Bienes Ralcea
Predio de terreno consistente da 1.45 cuerdas (1.5
acres), localizada en Hawk, Vermont. Dicha propiedad fue
adquirida en el afio 1976 a un costo de $35,000. El valor
estimado en el mercado esta basado en la apreciacion
personal del licenclado Domlnguez.
Hota 6 Pflrticipa.ci$n en el Activo Heto de la Sociedad
Profesional Domlnguez j Totti!
El licenclado Daniel R. Domlnguez posee el 50.5% de
participacidn en la sociedad profesional que opera bajo
la razdn social Domlnguez 6 Totti. El valor estimado del
activo neto de dicha sociedad al 31 de diciembre de 1992
se desglosa de la siguiente manera:
Active?
Efectivo
Cuentas por cobrar (net as)
Otras cuentas por cobrar
Mobil iario y equlpo (neto)
Plusvalla
Contribuciones pre pagadas
Gastos diferidos
Menos Pasjvp;
Cuentas a pagar
Obligacidn por pagar a socios
Obligaciones a pagar - otros
Contribuciones patronales a pagar
Contribuciones diferidas a pagar
Total de pasivos netos
Participacion del Lcdo. Daniel R.
Domlnguez
$ 21,071
338,992
3,750
157,416
68,657
2,505
27,978
620,569
8,094
71,381
130,672
570
46,645
257,362
$ 363,207
$ 183,420
Roberto F. FortuSo
Ckrtikiku Prni.ii" Aiiwxtant
98
LCPOfl. DAMIKL R. DOMIBQUKI T
EMBH1 IKIKAURT DE DOMIMQUK1
NOTAS AL EfiTADO DE COWPICIOM riMAMCIERA
31 DE DICIEMBRE Pg 1992,
Hota 7 Qbli9aciones por Paaar
Oblig«ci6n por pagar al Banco Popular
de Puerto Rico #601-224146-600 al
8.75% de interes anual, colateralizada
por primera bipoteca sobre residencia
principal, localizada en el #1662 de
la Calle Jazmln en la Urbanizaci6n
San Francisco, Rio Piedras, P.R.,
venciendo el 1 de julio del 2007.
Dicha obligacidn requiere pagoe
mensuales de principal, intereses y
contribuciones de $754.00. $ 54,262
Obligacion por pagar al Banco Popular
de Puerto Rico #008-36-454357 al 14.45%
de interes, colateralizada por velero
de 36 pies de eslora marca Beneteau
modelo 1984, venciendo en el afio 1999.
Dicha obligacidn requiere pagos men-
suales de principal e interes de $537. 31.301
Total $ 85,563
Roberto F. FortuSo
CKRTIFIKI* Pl'Bl.lf ACI'OINTANT
99
LCDOS. DA* I EL K. DOMIMOUBI X
CARMBB IRIIARRT DB DOM I ■ QUE t
NOTAS AL ESTAPO DB COWDICIOM FIMAMCIERA
31 DE DICIEMBRE DE 1993
Hota 8 Estimado de Contribucidn sobre Ingresos
Los valores corrientes estimados de las deudas al 31 de
diciembre de 1992, son lguales a sus bases contributivas.
El estimado de contribucidn sobre ingresos provee para
la cantidad de impuestos que habrla que paqar si a la
fecha del estado financiero se realizara el ezceso de
valores corrientes estimados de los activos 6obre sus
bases contributivas. Esta acumulacion sera distinta de
las cantidades de contribuci6n sobre ingresos que
eventualmente se paguen debido al nomento y metodo de
disposicidn final de estos activos. Ademas, estae
cantidades se afectaran por las leyes y reglamentos
vigentes al momento de su disposicion.
Los valores corrientes estimados al 31 de diciembre de
1992, exceden sus bases contributivas por $930,715. El
ezceso de los valore6 corrientes estimados de los activos
principal.es sobre sus bases contributivas son las
siguientes:
Residencia $ 265,000
Inversi6n predio de terreno Hawk,
Vermont $ 15,000
Participacion en Sociedad Profesional
Domlnguez & Totti $ 83,420
Benef icios Acumulados en Plan de
Pensi6n $ 567,295
Roberto F. FortuAo
CKRTIKIKU Pl'Bl.lt' ACCOIXTANT
100
SENATE JUDICIARY COMMITTEE
QUESTIONNAIRE FOR JUDICIAL NOMINEES
I. BIOGRAPHICAL INJORMATION (PUBLIC)
Full name (include any former names used.)
Sarah Elizabeth Savoia Vance
Address: List current place of residence and office address(es).
Residence: 1821 State Street
New Orleans, Louisiana 70118
Office: Stone, Pigman, Walther, Wittmann & Hutchinson
546 Carondelet Street
New Orleans, Louisiana 70130
Date and place of birth.
January 16, 1950
Donaldson ville, Louisiana
Marital Status: (include maiden name of wife, or husband's name). List spouse's
occupation, employer's name and business address(es)
Spouse's Name:
Spouse's Occupation:
Spouse's Employer:
Robert Patrick Vance
Attorney
Robert Patrick Vance is a partner with Jones, Walker,
Waechter, Poitevent, Carrere & Denegre, 201 St. Charles
Avenue, New Orleans, Louisiana 70170
61190/
101
Education; List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
Louisiana State University
Degree: B.A. in Political Science, 1971
Dates of Attendance: 1967-1971
Nicholls State University
Dates of Attendance: Summer Session, 1968
Louisiana State University
Graduate work in Political Science during Summer Session and Fall Semester of
1973.
Tulane University School of Law
Degree: J.D. 1978
Dates of Attendance: 1975-78
Employment Record: List (by year) all business or professional corporations,
companies, firms, or other enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were connected as an
officer, director, partner, proprietor, or employee since graduation from college.
Jan. 1, 1986 - Present: Sarah S. Vance, a Professional Law Corporation, of
which I am the sole shareholder, a director and an
officer, is a partner in the law firm of Stone,
Pigman, Walther, Wittmann & Hutchinson, 546
Carondelet Street, New Orleans, Louisiana 70130.
I am an employee of the professional law
corporation.
Jan. 1983 - Dec. 31, 1985: Partner
Stone, Pigman, Walther, Wittmann & Hutchinson
546 Carondelet Street
New Orleans, Louisiana 70130
102
June 30, 1982 - Present: Partner in The 546 Company, a partnership of the
Stone, Pigman partners, formed to develop, lease
and operate the office building in which the law
firm is located.
Sept. 1978 - Dec. 31, 1982: Associate
Stone, Pigman, Walther, Wittmann & Hutchinson
546 Carondelet Street
New Orleans, Louisiana 70130
Summer 1978 and Summer 1977: Law Clerk
Stone, Pigman, Walther, Wittmann & Hutchinson
546 Carondelet Street
New Orleans, Louisiana 70130
Summer 1977 and Summer 1976: Law Clerk
Lemle, Kelleher, Kohlmeyer & Matthews
Pan American Life Center
601 Poydras Street
Suite 2100
New Orleans, Louisiana 70130
Sept. 1972 - July 1975: Researcher, then Research Analyst
Public Affairs Research Council
4664 Jamestown Avenue
Baton Rouge, Louisiana
Nov. 1, 1971 - July 28, 1972: Staff Assistant
Group Pensions Department
Connecticut General Life Insurance Co. (now
CIGNA)
950 Cottage Grove Road
Bloorafield, Connecticut 06002
Military Service: have you had any military service? If so, give particulars,
including the dates, branch of service, rank or rate, serial number and type of
discharge received.
No.
- 3 - 6U90I
103
Honors and Awards: List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the
Committee.
Tulane University School of Law
Rank in Class: 1st
Winner Faculty Medal - highest overall academic average
Order of the Coif
Managing Editor, Tulane Law Review, 1977-1978
Board of Student Editors, Tulane Law Review, 1976-1977
Gertler Law Review Award, Best Casenote, 1977
Joseph Charles Bostick, Jr. Scholarship
Only Student Member, Dean Search Committee, 1977-1978
Named Junior Honorary Member, Louisiana Law Institute, 1978
Louisiana State University
Rank in Class: 1st
Grade Point Average: 3.97
Arts & Sciences Honors Scholarship
Woodrow Wilson Fellowship Finalist
Phi Beta Kappa Faculty Group Award
Scholastic Honoraries: Phi Kappa Phi
Mu Sigma Rho
Pi Sigma Alpha
Alpha Lambda Delta
Member Judicial Board, 1971
Bar Associations: List all bar associations, legal or judicial-related committees or
conferences of which you are or have been a member and give the titles and dates
of any offices which you have held in such groups.
American Bar Association, 1978 to Present
Antitrust Section: Council, 1993-19%
Chair, Membership Committee, 1991-1993
Vice-Chair, Membership Committee, 1989-1991
Member, Health Care Committee, 1992 to Present
Member, Civil Practice & Procedure Committee, 1984 to
Present
4 " 61I9W
104
Member, Task Force on Women and Minorities, 1991-
1992
Member, Task For on Inc :rect Purchaser Issues, 1993
Member, Task Fore- on Accreditation of Specialists, 1993
to Present
Litigation Section: Member, 1978 to Present
Louisiana State Bar Association, 1978 to Present
Antitrust and Trade Regulation Section: Cbair, 1993-1995
Vice-Chair, 1991-1993
Secretary-Treasurer, 1989-
1991
Corporation and Business Law Section
Civil Law and Litigation Section
Client Security Fund Committee, Member, 1986-1989
Federal Bar Association: 1986 to Present
New Orleans Bar Association: 1982 to Present
Bar Association of the Federal Fifth Circuit: 1989 to Present
National Association of Health Lawyers: 1990 to Present
Federal Energy Bar Association: 1986
Louisiana Association of Women Attorneys: 1985-1989
10. Other Memberships: List all organizations to which you belong that are active in
lobbying before public bodies. Please list all other organizations to which you
belong.
(a) No lobbying organization memberships. However, I am a member of the Council
of the Section of Antitrust Law of the American Bar Association, which, from
time to time, comments on proposed Congressional legislation in the area of
antitrust law.
5 - 61191V
105
(b) Other Organizations:
Partners in Art (New Orleans Museum of Art support group)
Friends of the Zoo
Tulane Associates
Louisiana State University Alumni Association
New Orleans Contemporary Arts Center
11. Court Admissions: List all courts in which you have been admitted to practice, with
dates of admission and lapses if any such memberships lapsed. Please explain the
reason for any lapse of membership. Give the same information for administrative
bodies which require special admission to practice.
Louisiana Supreme Court and State Courts: October 6, 1978
United States District Court, Eastern District of Louisiana: December 6, 1978
United States District Court for Western District of Louisiana: October 30, 1987
United States District Court for Middle District of Louisiana: October 30, 1987
Fifth Circuit Court of Appeals: January 21, 1982
Eleventh Circuit Court of Appeals: January 22, 1982
Supreme Court of the United States: September 16, 1988
12. Published Writings: List the titles, publishers, and dates of books, articles, reports,
or other published material you have written or edited. Please supply one copy of
all published material not readily available to the Committee. Alio, please supply
a copy of all speeches by you on issues involving constitutional law or legal policy.
If there were press reports about the speech, and they are readily available to you,
please supply them.
A. Publications Since Law School (Attachments 1-10)
1 . Immunity for State-Sanctioned Provider Collaboration After TICOR, 62 Antitrust
Law Journal 409 (1994).
2. Alternative Delivery Systems: Antitrust Issues Implicated by Nonprice Restraints
(approved for publication by ABA Section of Antitrust Law).
3. FDIC v. Mijalis: Introduction, I Bank Gov. L. Reptr. Nos. 2 & 3, at 220 (Mar.
- Apr. 1992).
4. Contributing Author: Antitrust Evidence Handbook (1991 Antitrust Law Section,
American Bar Association). (Pages xiii, 89-110)
61190/
106
5. New Trouble for tr. .Antitrust Plaintif - The Japanese Electronics Decision, 34
La. B.J. 20 (June 1986).
6. Fifth Circuit Symposium, Antitrust Law, 32 Loy. L. Rev. 579 (1986).
7. Fifth Circuit Symposium, Antitrust Law, 30 Loy. L. Rev. 517 (1984).
8. Recent Developments in the Law, Antitrust Law, 30 La. B.J. 374 (April 1983).
(erroneously published under wrong name)
9. Note, Obligations: Recovery of Nonpecuniary Damages in Contract, 51 Tul. L.
Rev. 749 (1977).
10. Note, Demise and Resurrection of the St. Mien Doctrine, 51 Tul. L. Rev. 375
(1977).
B. Pre-law School Publications (Attachments 11-18)
11. The Impact of Federal Welfare Reform in Louisiana, PAR Analysis No. 202
(Public Affairs Research Council, December 1974).
12. Curbing Dual Officeholding, PAR Analysis No. 199 (Public Affairs Research
Council, September 1974).
13. No-Fault Insurance- A Reasonable Alternative? PAR Analysis No. 195 (Public
Affairs Research Council, January 1974).
14. PAR Convention Commentary, No. 9, Civil Service (Public Affairs Research
Council, December 1973).
15. Special Education: A Mandate to Louisiana Schools, PAR Analysis No. 194
(Public Affairs Research Council, December 1973).
16. PAR Convention Commentary, No. I. The Legislature (Public Affairs Research
Council, July 1973).
17. Organizational Structures for Insurance Regulation, PAR Analysis NO. 190
(Public Affairs Research Council, April 1973).
7 - 61190/
107
18. General Election, November 1972, PAR Analysis No. 185 (Public Affairs
Research Council, November 1972).
The Public Affairs Research Council does not publish in the names of individual
researchers, but I was responsible for the preparation of the manuscripts for each of the
above publications.
13. Health; What is the present state of your health? List the date of your last physical
examination.
Excellent
March 2, 1994
14. Judicial Office: State (chronologically) any judicial offices you have held, whether
such position was elected or appointed, and a description of the jurisdiction of each
such court.
None.
15. Citations; If you are or have been a judge, provide: (1) citations for the ten most
significant opinions you have written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or where your judgment was
affirmed with significant criticism of your substantive or procedural rulings; and (3)
citations for significant opinions on federal or state constitutional issues, together
with the citation to appellate court rulings on such opinions. If any of the opinions
listed were not officially reported, please provide copies of the opinions.
Not applicable.
16. Public Office: State (chronologically) any public offices you have held, other than
judicial offices, including the terms of service and whether such positions were
elected or appointed. State (chronologically) any unsuccessful candidacies for
elective public office.
None.
61190/
108
17. Legal Career:
Desc >;te chronologically your law practice and experience after graduation
from law school including:
1. whether you served as clerk to a judge, and if so, the name of the
judge, the court, and the dates of the period you were a clerk;
No.
whether you practiced alone, and if so, the addresses and dates;
No.
3. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been connected, and the
nature of your connection with each;
Associate, 1978-1982:
Partner, 1983-Present:
Stone, Pigman, Walther. Wittmann &
Hutchinson
546 Carondelet Street
New Orleans, Louisiana 70130
Stone, Pigman, Walther, Wittmann &
Hutchinson
546 Carondelet Street
New Orleans, Louisiana 70130
Since January 1, 1986, my professional
corporation, Sarah S. Vance, A Professional
Law Corporation, of which I am the sole
shareholder, has been a partner in Stone,
Pigman, Walther, Wittmann & Hutchinson.
I am an employee of the professional
corporation.
-9-
61190/
109
Other Legal Experience:
Summer 1976 and Summer 1977:
Summer 1977 and Summer 1978:
Law Clerk
Lemle, Kelleher. Kohlmeyer & Matthews
Pan American Life Center
601 Poydras Street
Suite 2100
New Orleans, Louisiana 70130
Law Clerk
Stone, Pigman, Walther, Wittmann &
Hutchinson
546 Carondelet Street
New Orleans, Louisiana 70130
What has been the general character of your law practice, dividing it
into periods with dates if its character has changed over the years?
Since joining Stone, Pigman in 1978, my practice has been in the
area of complex commercial litigation, although I did some transactional
work during my first three years of practice. In addition, beginning in
1985, I began to do some white collar criminal defense work, principally
in the area of antitrust law, but later including defense procurement and
insurance fraud cases. On the civil side, I have represented both plaintiffs
and defendants at various times in litigation in the following areas, among
others: antitrust, securities, corporate officer and director liability,
professional malpractice, oil and gas, contracts, state/local taxation,
sports-related law, civil RICO, insurance regulation, trademark and unfair
competition law.
Describe your typical former clients, and mention the areas, if any, in
which you have specialized.
My typical clients have included business corporations,
governmental entities and to a lesser extent, individuals. See No. 1 for
practice areas.
- 10-
61190/
110
c. 1. Did you appear in court frequently, occasionally, or not at all? If the
frequency of your appearances in court varied, describe each such
variance, giving dates.
I have appeared in court regularly, but the nature of my court
appearances varies with the stage of the proceedings on my trial schedule.
Because my practice usually involves complex cases that take years to
develop, when a case is in the discovery phase, court appearances are
brief and generally involve motion practice, whereas trials, particularly in
the past five years, tend to be protracted and to last several weeks.
Further, I have appeared in court more regularly in the past six or seven
years than I did earlier in my career.
What percentage of these appearances was in:
(a) federal courts;
(b) state courts of record;
(c) other courts.
My best estimate is that in the past six years, about 95% of my
court appearances were in federal court and 5 % in state court. In prior
years, the percentage was approximately 50% federal, 50% state, with
most of my trial work in state court.
What percentage of your litigation was:
(a) civil;
(b) criminal.
In the past five or six years, approximately 80% of my litigation
experience was civil, and 20% was criminal. The percentage of criminal
work was lower in earlier years. I did not do any criminal work prior to
1985.
11
61190/
Ill
State the number of cases in courts of record you tried to verdict or
judgment (rather than settled), indicating whether you were sole
counsel, chief counsel, or associate counsel.
I have tried approximately 18 cases, in 40% of which I was chief
counsel and in 60%, co-counsel.
5. What percentage of these trials was:
(a) jury;
(b) non-jury.
Approximate^ 30% of these trials were jury trials, and 70% were bench
trials.
18. Litigation: Describe the ten most significant litigated matters which you personally
handled. Give the citations, if the cases were reported, and the docket number and
date if unreported. Give a capsule summary of the substance of each case. Identify
the party or parties whom you represented; describe in detail the nature of your
participation in the litigation and the final disposition of the case. Also state as to
each case:
a. the date of representation;
b. the name of the court and the name of the judge or judges before whom the
case was litigated; and
c. the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.
1. Federal Deposit Insurance Corporation v. Mijetis, et al., C.A. No. 89-1316 (W.D. La.
filed 1989), aff'd in part and rev'd in part, No. 92-5123 (5th Cir., Mar. 10, 1994).
In Mijalis, I was lead counsel for the Federal Deposit Insurance Corporation
("FDIC") in the trial of a director and officer liability action against 12 former officers and
directors of a failed insured bank, two insurance companies and one insurance agency. In this
litigation, FDIC asserted claims of gross negligence and breach of fiduciary duty arising from
16 highly complex commercial loan transactions. Discovery and other pretrial proceedings
consumed three years, and a number of defendants settled prior to trial. In December 1992, 1
tried the case against six defendants before a jury for six weeks in federal court in Shreveport,
Louisiana. After over 40 witnesses testified and thousands of exhibits were introduced, the jury
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answered 133 separate interrogatories on liability, damages and insurance issues and returned
a verdict of $28 million in favor of the FDIC. The significance of the case was not only the
highly complex nature of the trial, but also that it resulted in one of the largest verdicts awarded
the FDIC in all the cases tried in the wake of the banking crisis of the 1980's. On appeal, the
Fifth Circuit Court of Appeals affirmed the jury verdict in all respects but reversed the trial
court's rulings on insurance coverage.
Nature of Participation:
Trial Period:
Trial Judge:
Co-Counsel for FDIC:
Lead trial counsel for FDIC and lead counsel on the appeal
November 5, 1992 - December 12, 1992
Honorable Tom Stagg
United States District Judge
Western District of Louisiana
Shreveport, Louisiana
Judy Y. Barrasso
Barry W. Ashe
Karen H. Freese
Stone, Pigman, Walther, Wittmann & Hutchinson
546 Carondelet Street
New Orleans, Louisiana 70130
Telephone: (504) 581-3200
Lawrence H. Richmond
Appellate Counsel
Richard Gill
Counsel
Federal Deposit Insurance Corporation
550 17th Street, N.W.
Washington, D.C. 20429
Telephone: (202) 736-0618
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Counsel for Defendants,
Gus S. Mijalis
Alex S. Mijalis
John G. Cosse
Robert A. Oxenreiter:
Counsel for Defendants,
John B. Franklin
and J. Harper Cox, Jr.
Counsel for International
Insurance Co. and
Crum & Forster, Inc.:
Counsel for Lloyds Underwriters
of London:
Joseph C. LeSage, Jr.
John R. D'Anna
Booth, Lockard, Politz, LeSage & D'Anna
1204 Transcontinental Tower
330 Marshall
Suite 204
Shreveport, Louisiana 71101
Telephone: (318) 222-2333
Paul M. Cooke
Simon, Fitzgerald, Cooke, Reed & Welch
4700 Line Avenue
Suite 200
Shreveport, Louisiana 71106
Telephone: (318)686-2600
Phillip W. Preis
James R. Lewis
Preis & Crawford
1600 Premier Centre, N. Tower
450 Laurel Street
Baton Rouge, Louisiana 70801
Telephone: (504) 343-5290
Duncan L. Gore
Michael Keeley
Strasburger & Price
4300 NCNB Plaza
901 Main Street
Dallas, Texas 75202
Telephone: (214)651-4550
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Counsel for Southern
Underwriters, Inc. and Morris,
Temple & Trent, Inc.:
Counsel for W. Theron Roberts:
Counsel for Dr. John R. Davis:
Counsel for Palmer R. Long:
Counsel for Virginia K. Shehee:
Counsel for Dr. James G. Cosse
Jack M. Alltmont
Sessions & Fishman
Place St. Charles
201 St. Charles Avenue
Suite 3500
New Orleans, Louisiana 70170
Telephone: (504) 582-1507
David Klotz
Bodenheimer, Jones, Klotz & Simmons
509 Milam Street
Shreveport, Louisiana 71101
Telephone: (318) 221-1507
Gordon E. Rountree
Rountree, Cox, Guin & Blackman
400 Travis Street
Suite 1200
Shreveport, Louisiana 71101
Telephone: (318)226-0993
John M. Madison, Jr.
Wiener, Weiss, Madison & Howell
Post Office Box 21990
Shreveport, Louisiana 71120
Telephone: (318)226-9100
Herschel £. Richard, Jr.
Cook, Yancey, King & Galloway
1700 Commercial National Tower
333 Texas Street
Shreveport, Louisiana 71101
Telephone: (318)221-6277
Tommy J. Johnson
Tyler & Johnson
1717 Marshall
Shreveport, Louisiana 71101
Telephone: (318)227-1960
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Counsel for John L. Schober, Jr.: Kenneth R. Antee, Jr.
711 Transcontinental Tower
330 Marshall Street
Shreveport, Louisiana 71101
Telephone: (318) 221-0781
Tom F. Phillips
Skip Phillips
Margaret L. Tooke
Taylor, Porter, Brooks & Phillips
Premiere Centre •
451 Florida Street
8th Floor
Baton Rouge, Louisiana 70821
Telephone: (504) 387-3221
2. In re Marine Construction Antitrust Litigation, M.D.L. No. 417 (E.D. La. 1980-1986).
In Marine Construction, I represented 21 oil producing and pipeline companies
as plaintiffs in six antitrust actions against two marine construction firms. In May 1980, the
Panel on Multidistrict Litigation ordered these cases consolidated with similar actions for pretrial
proceedings in the United States District Court for the Eastern District of Louisiana in In re
Marine Construction Antitrust Litigation, M.D.L. No. 417. The cases involved allegations of
a worldwide price-fixing conspiracy spanning 20 years that affected billions of dollars in marine
construction projects in the Gulf of Mexico, the Persian Gulf, the North Sea and offshore areas
of Alaska, California, South America, West Africa, Malaysia, and the Philippines. During six
years of pretrial proceedings, the parties produced millions of documents, deposed over 500
witnesses, and litigated numerous motions. As co-counsel with another member of my firm, I
participated on the plaintiffs' steering committee, which spearheaded the prosecution of the case.
We also served as liaison counsel for plaintiffs in dealing with the court and opposing counsel.
Over this period, I took numerous depositions, drafted and edited volumes of briefs, reviewed
hundreds of thousands of documents, appeared in court often and was responsible for preparing
a summary judgment motion on defendant's counterclaim for monopsony purchasing practices.
All of the consolidated cases were settled prior to trial, with total settlements exceeding $170
million. Some of my clients were among the last to settle in 1986 and received the largest
settlement. The case was a nationally significant antitrust case, which involved the participation
of some of the leading members of the antitrust and trial bars. It gave me extensive experience
with complex multidistrict antitrust litigation.
Parties Represented: Columbia Gulf Transmission Company
Columbia Gas Pipeline Co.
Energy Ventures, Inc.
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Forest Oil Company
Cabot Company
Amoco Production Company
Amoco (U.K.) Exploration Co.
Amoco Norway Oil Co.
Amoco Trinidad Oil Co.
Amoco Iran Oil Company
Amoco Egypt Oil Company
Exxon Corporation
Exxon Pipeline Co.
Esso Exploration & Production Australia, Inc.
Esso Production Malaysia, Inc.
Sun Oil Company
Diamond Shamrock, Inc.
Elf Acquitane, Inc.
Northern Michigan Exploration Co.
Pacific Lighting Corp.
Sun Pipe Line Company
Co-Counsel for the foregoing
parties:
Phillip A. Wittmann (lead for all except Exxon plaintiffs)
Steven W. Usdin
Richard C. Stanley
Stone, Pigman, Walther,
Wittmann & Hutchinson
546 Carondelet Street
New Orleans, Louisiana 70130
Telephone: (504)581-3200
Co-Counsel for the Exxon
Parties:
E. William Bamett, Lead and Chairman of Plaintiffs'
Steering Committee
Rufus W. Oliver, III
3000 One Shell Plaza
Houston, Texas 77002
Telephone: (713) 229-1234
Charles W. Matthews
Exxon Company, U.S.A.
Exxon Building
Room 1754
Houston, Texas 77002
Telephone: (713) 656-3366
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Co-Counsel for All Plaintiffs:
Janet L. McDavid
Hogan & Hanson
Suite 12W-306
555 Thirteenth Street, N.W.
Washington, D.C. 20004
Telephone: (202) 637-8780
Counsel for Kerr-McGee
Corp.:
Glenn W. McGee
Chadwell, Kayser, Ruggles, McGee & Hastings, Ltd.
8500 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
Counsel for Michigan
Wisconsin Pipe Line Co. and
American Natural Gas
Production Co.:
William O. Fifield
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Telephone: (312) 853-7000
Counsel for Santa Fe Energy
Co., et al. and Belmont Oil
Corp., et al.:
Joseph DuCoeur
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Telephone: (312) 861-2000
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Counsel for Natural Gas
Pipeline co. of America, Inc.
and NAPECO, Inc.:
John E. Burke
Burke, Bosselman & Weaver
Xerox Centre
55 West Monroe Street
Suite 800
Chicago, Illinois 60603
Telephone: (312) 263-3600
Counsel for Consolidated Gas
Supply Corp., CNG
Producing Co. , and Newmont
Oil Co.:
James E. Wright, Jr.
7379 Agate Street
New Orleans, Louisiana 70124
Telephone: (504) 282-2476
Counsel for Texaco, Inc.:
Fred A. Freund
Kaye, Scholer, Fierman, Hays & Handler
425 Park Avenue
New York, New York 10022
Telephone: (212) 836-8000
Counsel for American
Natural Gas Production Co.:
William O. Fifield
David T. Pritikin
Nathan P. Eimer
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Telephone: (312) 853-7000
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Counsel for Aminoil
International Inc.,
Aminoil U.S.A. Inc.,
American Independent Oil
Co.,
Aminoil Development Inc.,
and
Signal Oil of Louisiana, Inc.:
Stephen D. Susman
Gary V. McGowan
Randall Wilson
Susman, Godfrey & McGowan
2400 Allied Bank Plaza
1000 Louisiana
Houston, Texas 77002
Telephone: (713)651-9366
Counsel for Clark Oil
Producing Co.:
Robin P. Hartman
William R. Allensworth
Haynes and Boone
4444 First International Building
Dallas, Texas 75270
Telephone: (214)744-0550
Counsel for Plaintiff,
Coastal Oil & Gas Corp.:
Stephen D. Susman
Gary V. McGowan
Randall Wilson
Susman, Godfrey & McGowan
2400 Allied Bank Plaza
1000 Louisiana
Houston, Texas 77002
Telephone: (713)651-9366
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Counsel for Conoco Inc.:
Marjorie A. Wil: n
Conoco In;.
600 N. Dairy Ashford Road
McClean Building
Houston, Texas 77079
Telephone: (713)293-1228
Michael M. Levy
Levy & Smith
Suite 300
4801 Massachusetts Avenue, N.W.
Washington, D.C. 20016
Telephone: (202)686-5700
Counsel for Plaintiff,
El Paso Natural Gas Co.
Stephen D. Susman
Gary V. McGowan
Randall W. Wilson
Susman, Godfrey & McGowan
2400 Allied Bank Plaza
1000 Louisiana
Houston, Texas 77002
Telephone: (713)651-9366
Counsel for Plaintiffs,
Mobil Oil Corp.,
Mobil Eugene Island Pipeline
Co.,
Mobil Oil Exploration &
Producing Southeast Inc.,
and Mobil-GC Corp.:
Blake G. Arata
John M. McCollam
Gordon, Arata, McCollam & Duplantis
201 St. Charles Avenue
Suite 4000
New Orleans, Louisiana 70170
Telephone: (504)582-1111
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Counsel for Plaintiffs,
Norsk Hydro a.s. and
Norsk Hydro Produksjon
a.s.:
Edward N. Sherry
John F. Collins
Dewey, Ballantine
1301 Avenue of the Americas
New York, New York 10019
Telephone: (212)259-8000
Counsel for Plaintiff,
The Northwestern Mutual
Life Insurance Company:
J. Currie Bechtol
Hutcheson & Grundy
3300 Two Allen Center
Houston, Texas 77002
Telephone: (713)951-2800
Counsel for Plaintiff,
Petroleos Mexicanos:
Douglas S. Johnston
Crady & Peden
Two Houston Center
909 Fannin
Suite 1400
Houston, Texas 77010
Telephone: (713)739-7007
Counsel for Plaintiffs,
Southern Natural Gas Co.
Sonat Exploration Co. ,
and The Offshore Co.:
Joe H. Reynolds
Reynolds, Allen & Cook
3300 Allied Bank Plaza
Houston, Texas 77002
Telephone: (713)651-1300
Michael K. Swan
Andrews & Kurth, L.L.P.
4200 Texas Commerce Tower
Houston, Texas 77002
Telephone: (713)220-4200
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Counsel for Plaintiffs,
Valero Energy Corp. and
Gas Producing Enterprises,
Inc.:
Stephen D. Susman
Gary V. McGowan
Randall W. Wilson
Susman, Godfrey & McGowan
2400 Allied Bank Plaza
1000 Louisiana
Houston, Texas 77002
Telephone: (713)651-9366
Counsel for OKC Corp.,
Terra Resources, Inc. et al. ,
Energy Reserves Group,
Inc., et al.,
Home Petroleum Corp.,
Getty Oil Co., etal.
The Louisiana Land &
Exploration Co., et al. ,
H. W. Bass & Sons, Inc.,
Amax Petroleum Corp.,
Tesoro Petroleum Corp., et
al,
Union Oil Co. of California,
et al. :
Stephen D. Susman
Gary V. McGowan
Randall W. Wilson
Susman, Godfrey & McGowan
2400 Allied Bank Plaza
1000 Louisiana
Houston, Texas 77002
Telephone: (713)651-9366
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Counsel for American
Petrofina Co. of Texas, et
al.,
Wintershall Oil & Gas Co. :
Morris Harrell
Rain, Harrell, Emery, Young & Done
4200 Republic Bank Tower
Dallas, Texas 75201
Telephone: (214)742-1021
Counsel for Freeport
Minerals Co., et al.
Howard Adler, Jr.
Davis, Graham & Stubbs
Suite 500
1200 Nineteenth Street, N.W.
Washington, D.C. 20036
Telephone: (202)822-8660
Counsel for Tenneco, Inc.
Martin Michaelson
Janet L. McDavid
Hogan & Hartson
Columbia Square
555 Thirteenth Street, N.W.
Washington, D.C. 20004
Telephone: (202)637-5600
Counsel for Cities Service
Co., et al.,
Clam Petroleum Co., and
Phillips Petroleum Co., et
al.:
L. K. Smith
William C. KeUough
Boone, Smith, Davis & Minter
900 World Building
Tulsa, Oklahoma 74103
Telephone: (918)587-0000
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124
Counsel for Tenneco Oil Co. ,
etal.:
Counsel for High Island
Offshore System, et al.,
Texas Gas Transmission
Corp., et al., and
U-T Offshore System, et al. :
•nes R. Schmir
.aneco Oil Company
Post Office Box 2511
Houston, Texas 77001
Telephone: (713) 757-2131
Donald H. Balleisen
Greenebaum, Doll & McDonald
3300 First National Tower
Louisville, Kentucky 40202
Telephone: (502)589-4200
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Counsel for Southland
Royalty Co.,
Pam Eastern Exploration
Co., et al..
Crystal Oil Co., et al.,
Texas Eastern Transmission
Corp., et al.,
Trunkl ine Gas Co.,
Stingray Pipeline Co. , et al. ,
and Hamilton Brothers Oil
Co. , et al..
Joe H. Reynolds
Reynolds, Allen & Cook
1100 Milam Building
16th Floor
Houston, Texas 77002
Telephone: (713)651-1300
Michael K. Swan
Andrews & Kurth, L.L.P.
4200 Texas Commerce Tower
Houston, Texas 77002
Telephone: (713)220-4200
Counsel for Loop Inc.:
Earl S. Eichin, Jr.
O'Neil, Eichin, Miller & Breckinridge
639 Loyola Avenue
Suite 2600
New Orleans, Louisiana 70113
Telephone: (504)525-3200
Charles F. Thensted
430 Notre Dame
New Orleans, Louisiana 70130
Telephone: (504)524-9714
Counsel for Koch Industries,
Inc.:
James T. Skelly
4704 Southshore Drive
Metairie, Louisiana 70002
Telephone: (504)887-7048
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126
Counsel for Ocean Drilling .
Exploration Co., et al.:
Lewis H. Pitman
6221 West End Boulevard
New Orleans, Louisiana 70124
Telephone: (504)486-2407
Counsel for J. S.
Abercrombie Mineral Co.
Donald E. Kee
Fouts, Moore, Coleman & Royall
5005 Riverway
Suite 400
Houston, Texas 77056
Telephone: (713)622-9966
Counsel for Marathon Oil
Co., et al.:
Jack M. Mc Adams
Marathon Oil Company
Post Office Box 3128
1776 Yorktown
Houston, Texas 77001
Telephone: (713)629-6600
Counsel for Plaintiffs,
Gulf Oil Corporation, et al. :
John E. Bailey
Catherine C. McCulley
Robert A. Nailling
David R. Stevenson
Gulf Oil Corp.
Post Office Box 3725
Houston, Texas 77253
Telephone: (713)754-2000
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Counsel for The Dow
Chemical Company, et al.,
and Shell Oil Company, et
al.:
Keith E. Pugh. Jr.
Marcia Press Kaplan
Howrey & Simon
1730 Pennsylvania Avenue,
Washington, D.C. 20006
Telephone: (202)783-0800
N.W.
Counsel for Atlantic
Richfield Company, et al. :
Donald A. Bright
Edward E. Vaill
Howard S. Fredman
Atlantic Richfield Company
515 South Flower Street
Los Angeles, California 90071
Telephone: (213)486-1510
Counsel for Florida
Exploration Co. and
Drillamex, Inc.:
James W. Dil worth
Carta Powers Dykes
James L. Mueller
Andrews & Kurth
4200 Texas Commerce Tower
Houston, Texas 77002
Telephone: (713) 22(W200
Counsel for British Petroleum
Company, Ltd., et al.:
Bruce A. Hecker
Richard Czaja
Susan Ratner
Shea & Gould
330 Madison Avenue
New York, New York 10017
Telephone: (212)370-8000
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Counsel for Arabian
American Oil Co., et al.
and The Northwestern
Mutual Life Insurance Co.:
John D. Roady
Thomas T. Hutcheson
J. Currie Bechtol
Hutcheson & Grundy
3300 Two Allen Center
Houston, Texas 77002
Telephone: (713)654-7000
Counsel for Defendants,
J. Ray McDennott & Co.
Inc.,
Oceanic Contractors, Inc.,
Charles L. Graves,
Robert K Richie,
H. W. Bailey, and
H. Rogers Reeves:
Denis Mclnemey
Michael P. Tierney
Ray Regozin
Cahill, Gordon & Reindel
80 Pine Street
New York, New York 10005
Telephone: (212)701-3000
Harry A. Rosenberg
Phelps, Dunbar
Texaco Center
400 Poydras Street
New Orleans, Louisiana 70130
Telephone: (504)566-1311
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Counsel for Defendants,
Brown & Root, Inc.,
Halliburton Co.,
Hugh W. Gordon, Jr., and
Edward L. Tallichet:
Richard P. Keeton
Jack C. Nickens
Scon, Douglass & Keeton
2526 One Houston Center
Houston, Texas 77002
Telephone: (713)759-1234
Don M. Richard
Denechaud & Denechaud
1412 Pere Marquette Building
New Orleans, Louisiana 70112
Telephone: (504)522-4756
Trial Judge:
Honorable Morey L. Sear
United States District Court
Eastern District of Louisiana
New Orleans, Louisiana
3. United States of America v. Gerald J. Daigle. Jr., et al., Cr. No. 92-312 (E.D. La.,
filed June 1992), on appeal, No. 93-3643 (5th Circuit Court of Appeals).
In Daigle, I represented an attorney in the defense of a 26-count indictment
brought by the United States alleging that the attorney participated with several co-defendants
and co-conspirators in an unlawful scheme to misrepresent the condition of a Louisiana insurance
company in violation of six federal statutes. The defendant, a corporate lawyer at a major New
Orleans law firm, was outside counsel for the insurance company. I also represented the
defendant in a parallel civil action filed by the Louisiana Department of Insurance to recover
millions of dollars in insurance losses, claiming attorney malpractice.
After almost a year of pretrial proceedings and two superseding indictments, the
criminal case was tried by jury for six weeks in federal court beginning May 10, 1993. Daigle
was a highly complex criminal trial involving ten complicated commercial transactions, 44
witnesses and thousands of exhibits. I was responsible for the management of the pretrial phase
of the case, which involved investigation of the charges, learning the regulatory framework of
the insurance industry in Louisiana, litigating discovery motions, analyzing thousands of
documents and structuring the defense for trial. In addition, I was intensely involved in all
aspects of trial preparation, including preparing and arguing motions in limine, preparing jury
instructions, devising trial strategy and drafting opening and closing statements. I was co-
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counsel for the defendant during the trial, and I handled witnesses on direct and cross-
examination and argued motions.
The defendant was convicted on some counts and acquitted on others. The case
is now on appeal to the Fifth Circuit Court of Appeals. I participated in briefing the appeal.
Trial Period:
May 10, 1993 - June 16. 1993
Co-Counsel for
Gerald J. Daigle, Jr.
Phillip A. Wittmann (lead)
Stone, Pigman, Walther, Wittmann & Hutchinson
546 Carondelet Street
New Orleans, Louisiana 70130
Telephone: (504)581-3200
Counsel for defendant,
George C. Cavin:
Arthur A. Lemann, III
300 Lafayette Street
New Orleans, Louisiana 70130
Telephone: (504)522-8104
Counsel for defendant,
John E. Seago:
John DiGiulio
331 St. Ferdinand
Baton Rouge, Louisiana 70802
Telephone: (504)383-0078
Counsel for defendant,
Lawrence Stoulig:
Michael H. Ellis
Chehardy, Sherman, Ellis, Breslin & Murray
1 Galleria Boulevard
Suite 1100
Metairie, Louisiana 70001
Telephone: (504)833-5600
Counsel for defendant,
David B. Ridge way:
Ralph Capitelli
Capiteili & Wickder
1100 Poydras Street
Suite 2950
New Orleans, Louisiana 70163
Telephone: (504)582-2425
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Counsel for defendant,
Peter Percopo:
Counsel for defendant,
Glynn Pittmann:
Counsel for the United States:
George Simno, III
601 N. Carrollton Avenue
New Orleans, Louisiana 70119
Telephone: (504) 484-7655/488-6261
Frank G. DeSalvo
725 Girod Street
New Orleans, Louisiana 70130
Telephone: (504)524-4191
Harry M. Rosenberg
former United States Attorney
Phelps, Dunbar
30th Floor
Texaco Center
400 Poydras Street
New Orleans, Louisiana 70130
Telephone: (504)566-1311
Robert J. Boitman
United States Attorney
James Letten
Assistant United States Attorney
501 Magazine Street
New Orleans, Louisiana 70130
Telephone: (504)589-2921
Herbert Mondros
Appellate Counsel
501 Magazine Street
New Orleans, Louisiana 70130
Telephone: (504)589-2921
Trial Judge:
Honorable Peter Beer
United States District Judge
Eastern District of Louisiana
New Orleans, Louisiana
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4. Federal Savings and Loan Insurance Corporation v. Mmahat, et al. , C. A. No. 86-5160
(E.D. La., filed November 21, 1986), aff J, 907 F.2d 546 (5th Or. 1990).
In Mmahat, I represented the Federal Savings and Loan Insurance Corporation
in a suit involving claims of breach of fiduciary duty, negligence, and professional malpractice
against IS former officers and directors, attorneys and architects of a failed savings and loan
association and their respective liability insurance companies. After two years of extensive
discovery involving production of hundreds of thousands of documents, scores of depositions,
and other pretrial proceedings, the case was tried to a jury in federal court in New Orleans for
almost a month in late 1988. The jury received evidence on a dozen complicated commercial
loan transactions through over 20 fact and expert witnesses and thousands of exhibits. FSLIC
won a verdict of $35 million, one of the largest jury awards it ever received. In addition,
FSLIC obtained several million dollars in settlements from a number of defendants who settled
prior to or during trial. On appeal, the Fifth Circuit Court of Appeals affirmed the jury verdict,
as well as certain adverse rulings by the trial court on insurance coverage.
Nature of Participation:
I was co-counsel for FSLIC in the pretrial proceedings and
at trial. I was responsible for the development of the
architectural malpractice case, which was successfully
settled before trial, as well as for the preparation and trial
presentation of various aspects of the legal malpractice and
breach of fiduciary duty phases of the case.
Trial Period:
November 10, 1988 - December 8, 1988
Co-Counsel for FSLIC:
Phillip A. Wittmann (lead)
James C. Gulotta, Jr.
Stone, Pigman, Walther,
Wittmann & Hutchinson
546 Carondelet Street
New Orleans, Louisiana 70130
Telephone: (504)581-3200
James Murphy
Squire, Sanders & Dempsey
1201 Pennsylvania Avenue, N.W.
Post Office Box 407
Washington, D.C. 20044
Telephone: (202)626-6600
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Counsel for Defendants,
John A. Mmahat
Mmahat & Duffy
Mmahat, Duffy, Opotowsky &
Walker:
Counsel for Defendant,
Mmahat, Duffy, Opotowsky
& Walker:
Mary L. Wolff
Wolff Ardis
6055 Primacy Parkway
Suite 360
Memphis, Tennessee 38119
Telephone: (901)763-3336
Eugene Comey
Appellate Counsel
Comey & Boyd
1101 Connecticut Avenue, N.W.
Suite 406
Washington, D.C. 20036
Telephone: (202)822-6340
Richard T. Simmons, Jr.
Hailey, McNamara, Hall, Larman & Papale
Suite 1400
One Galleria Boulevard
Post Office Box 8288
Metairie, Louisiana 70011
Telephone: (504)836-6500
Michael H. Ellis
Chehardy, Sherman, Ellis, Breslin & Murray
1 Galleria Boulevard, Suite 1100
Metairie, Louisiana 70001
Telephone: (504)833-5600
Counsel for Defendants,
James B. Cobb
Elva N. Winters:
L. Eades Hogue
C. Allen Hennesy
Lemle, Kelleher, Kohhneyer, Dennery, Hunley, Moss &
Frilot
601 Poydras Street
New Orleans, Louisiana 70130
Telephone: (504)586-1241
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Counsel for Defendant,
William Lucas:
Counsel for Defendant,
Rodney P. Jordy:
Counsel for Defendant,
David M. Resha
Counsel for Defendant,
American Casualty Company of
Reading, Pennsylvania:
Henry B. Hoppe. Jr.
Sciambra & Hoppe
3009 Lime Street
Metairie, Louisiana 70006
Telephone: (504) 885-7122
Richard J. Tomeny, Jr.
First Industrial Bank
1501 Veterans Boulevard
Second Floor
Metairie, Louisiana 70005
Telephone: (504) 836-0253
Frank G. DeSalvo
725 Girod Street
New Orleans, Louisiana 70130
Telephone: (504)524-4191
J. Michael Johnson
Marianne S. Pensa
Galloway, Johnson, Tompkins & Burr
4040 One Shell Square
New Orleans, Louisiana 70139
Telephone: (504)525-6802
Counsel for Defendant,
Mount Hawley Insurance
Company:
J. Forrest Hinton, T.A.
Adams & Reese
Suite 4500
One Shell Square
New Orleans, Louisiana 70139
Telephone: (504)581-3234
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135
Counsel for Defendants,
Continental Casualty Company,
John T. Pender, as Trustee for
the bankruptcy estate of
Richard C. Mouledous,
Robert Marrero, as Trustee for
the bankruptcy estate of
Mouledous Architectural
Corporation:
Counsel for Defendant,
New England Reinsurance
Company:
Counsel for Defendant,
Gulf Builders, Inc.:
Counsel for Defendant and
Third-Party Defendant,
Fidelity & Deposit Company
of Maryland:
John A. Stewart, Jr.
Regel L. Bisso
Hulse, Nelson & Wanek
610 Baronne Street
New Orleans, Louisiana 70130
Telephone: (504)524-6221
Donald A. Hammett
John V. Baus, Jr.
Blue, Williams & Buckley
3421 North Causeway Boulevard
Ninth Floor
Metaihe, Louisiana 70002
Telephone: (504)831-4091
Anita M. Warner
Hurley & Hoffmann
909 Poydras Street
Suite 1700
LL&E Tower
New Orleans, Louisiana 70112
Telephone: (504)584-5160
Eugene R. Preaus
Preaus, Roddy & Krebs
650 Poydras Street
Suite 1650
New Orleans, Louisiana 70130
Telephone: (504)523-2111
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Counsel for Defendant and
Third-Party Plaintiff,
Unroll Capdeville
Counsel for Third-Party
Defendant,
Commonwealth Land Title
Insurance Company:
Trial Judge:
Phillip A. Gattuso
Post Office Box 1190
56 Westbank Expressway
Gretna, Louisiana 70054
Telephone: (504) 368-4141
Roy L. Price
Ted A. Price
One Poydras Plaza
Suite 1060
639 Loyola Avenue
New Orleans, Louisiana 70113
Telephone: (504)523-3392
Honorable Charles Schwartz
United States District Court
Eastern District of Louisiana
5.
Barbay v. National Collegiate Athletic Association and Louisiana State University, C.A.
No. 86-5697, 1987 LEXIS U.S. Dist. 393 (E.D. La. 1987).
In Barbay, I represented the National Collegiate Athletic Association in the trial
of an injunctive action by an LSU football player to enjoin the NCAA's determination that he
was ineligible to play in the January 1987 Sugar Bowl because he tested positive for steroid use.
The significance of the case was that it rejected a constitutional challenge to the NCAA's drug
testing program for college athletes, which had nationwide ramifications for the NCAA's drug
mung program.
Nature of Participation:
of Trial:
I was lead trial counsel for the NCAA.
The hearing on the preliminary injunction was consolidated
with the trial on the merits and took place on December
31, 1986.
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Trial Judge:
Honorable Robert F. Collins
United States District Judge
Eastern District of Louisiana
New Orleans, Louisiana
Co-Counsel for NCAA:
Counsel for LSU:
Counsel for Roland Barbay :
John M. Land is
Stone, Pigman, Walther,
Wittmann & Hutchinson
546 Carondelet Street
New Orleans, Louisiana 70130
Telephone: (504)581-3200
John Black
Swanson, Midgley
922 Walnut
Suite 1500
Kansas City, Missouri 64106
Telephone: (816) 842-6100
Shelby McKenzie
Taylor, Porter, Brooks & Phillips
Premiere Centre
451 Florida Street
8th Floor
Baton Rouge, Louisiana 70821
Telephone: (504)387-3221
Nick F. Noreia, Jr.
Gainsburgh, Benjamin, Fallon, David & Ates
2800 Energy Centre
1100 Poydras Street
New Orleans, Louisiana 70163
Telephone: (504)522-2304
6. Steven J. Dupuis, Sr., et al. v. Thomas R. Becnel, The Becnel Co., and J. B. Mouton
& Sons, C.A. No. 87-1781 (W.D. La. filed August 1987).
In Dupuis, I represented the plaintiffs, who were limited partners and investor!
in a commercial real estate development partnership, in the trial of an action against a real esuie
developer and a construction contractor for securities fraud, civil RICO violations, breach of
contract and breach of fiduciary duty. The case involved two years of fact and expert disco very
and extensive motion practice. After successfully resisting repeated attempts to have the
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dismissed before trial, the plaintiffs' claims, along with defendant's counterclaim, were tried to
a jury in federal court in Lafayette, Louisiana for a month in October 1989. The jury found no
liability on either plaintiffs' claims or defendant's counterclaim after protracted deliberations.
The case was significant because of the complexity of the trial and that it involved
•a actual trial of a civil RICO case. These claims are usually dismissed or otherwise disposed
of prior to trial.
Nature of Participation:
I was co-counsel for plaintiffs and was responsible for the
management of the case in the pretrial stages, which
included numerous depositions, production of thousands of
documents, heavy motion practice, and formulation of an
extensive RICO case statement, pretrial order and jury
instructions. In addition, I was co-counsel at trial during
which I argued motions, examined and cross-examined
witnesses and participated in the development of opening
and closing statements.
Trial Period:
October 1, 1989 - October 31, 1989
Parties Represented:
Co-Counsel:
Steven J. Dupuis, Sr.
James H. Dupuis, Sr.
John W. Dupuis, III
John W. Wright, Trustee
Phillip A. Wittmann (lead)
Richard C. Stanley
Stone, Pigman, Walther,
Wittmann & Hutchinson
546 Carondelet Street
New Orleans, Louisiana 70130
Telephone: (504)581-3200
el for Thomas Becnel and
Tbe Becnel Company:
L. Eades Hogue
Lemle, Kelleher, Kohlmeyer, Deanery, Hunley, Moss &
Frilot
2100 Pan American Life Center
601 Poydras Street
New Orleans, Louisiana 70130
Telephone: (504)586-1241
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139
Thomas D. Curtis
100 E. Vermilion Street
Suite 303
Lafayette, Louisiana 70501
Telephone: (318)232^438
Counsel for J. B. Mouton & Sons: Richard T. Simmons, Jr.
Thomas Richard
Hailey, McNamara, Hall, Larman & Papale
Suite 1400
One Galleria Boulevard
Post Office Box 8288
Metairie, Louisiana 70011-8288
Telephone: (504)836-6500
Trial Judge: Honorable Donald Walter
United States District Judge
Western District of Louisiana
Shreveport, Louisiana
7. Amoco Production Co. v. Landry, et al„ No. 81-16631 (Civil District Court, Parish
of Orleans), 426 So. 2d 220 (La. App. 4th Cir. 1982), writ denied, 433 So. 2d 164
(La. 1983).
In Amoco, I represented the plaintiffs in the trial of a mandamus proceeding
against the Louisiana Board of Professional Engineers and Land Surveyors to allow public
inspection of the records of disciplinary hearings before the Board. Although the trial court
denied the writ, its judgment was reversed on appeal. The significance of the case is that the
appellate court confirmed the strong public policy underpinnings of the Louisiana Public Records
Law, which requires it to prevail over claims of special exceptions. The case also established
that corporations, like individuals, have the right to inspect public records under Louisiana law.
Parties Represented: Amoco Production Company
Columbia Gas Development Corp.
Energy Ventures, Inc.
Columbia Gulf Transmission Co.
Diamond Shamrock Corp.
Elf Aquitaine Oil & Gas Co.
Forest Oil Corp.
Cabot Corp.
Northern Michigan Exploration Co.
Sun Oil Co.
Sun Pipe Line Co.
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Nature of Participation
Date of Trial:
Trial Judge:
Co-Counsel for Plaintiffs:
Counsel for Louisiana Board of
Professional Engineers and Land
Surveyors:
140
I was lead counsel in the trial court and on the appeal.
November 13, 198i
Thomas A. Early. Jr.
Civil District Coun
Division "A"
Parish of Orleans
State of Louisiana
Steven W. Usdin
Stone, Pigman, Walther,
Wittmann & Hutchinson
546 Carondelet Street
New Orleans, Louisiana 70130
Telephone: (504)581-3200
Jarrell E. Godfrey, Jr.
L. Howard Scott, III
Andrew Rinker, Jr.
Chaffe, McCall, Phillips,
Toler & Sarpy
2300 Energy Centre
HOOPoydras Street
New Orleans, Louisiana 70130
Telephone: (504)585-7000
Counsel for Interveners, Hosea
Ware Bailey, Charles L.
Graves, Robert K. Ritchie
Henry R. Reeves, and McDermott,
Inc.: Harry A. Rosenberg
Phelps, Dunbar
Texaco Center
400 Poydras Street
New Orleans, Louisiana 70130
Telephone: (504)566-1311
41 -
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8. English v. National Collegiate Athletic Association and Tulane University, No. 83-
14981 (Civil District Court for the Parish of Orleans), aff'd, 439 So. 2d 1218 (La.
App. 4th Or. 1983).
In English, I was co-counsel for the NCAA in the trial of an action by a Tulane
football player to enjoin his ineligibility determination based on the NCAA's student transfer
rule. The significance of the case was that the trial court and the court of appeal upheld the
reasonableness of the NCAA's transfer rule against charges that it was arbitrary, capricious,
discriminatory and violated the Louisiana antitrust laws. The case was intensely litigated over
the course of a month in 1983, with an injunction trial lasting several days and several
intermediate stops at the court of appeal and the Louisiana Supreme Court.
Nature of Participation:
Co-counsel for the NCAA in the trial court and on the
appeal.
Trial Date on Preliminary
Injunction:
Trial Judge:
September 21-29, 1983
Honorable Revius O. Ortique, Jr.
Civil District Court
Parish of Orleans
State of Louisiana
Co-Counsel for NCAA:
Phillip A. Wittmann (lead)
Wayne J. Lee
Stone, Pigman, Walther,
Wittmann & Hutchinson
S46 Carondelet Street
New Orleans, Louisiana 70130
Telephone: (504)581-3200
George Gangweir
John Black
Swanson, Midgley
922 Walnut
Suite 1500
Kansas City, Missouri 64106
Telephone: (816) 842-6100
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Counsel for John English:
Gibson Tucker, Jr. (deceased)
Jerald N. Ar.-ry
Gilbert V. Andry, III
Andry and Andry
710 Carondelet Street
New Orleans, Louisiana 70130
Telephone: (504)581-4334
Counsel for Tulane University:
Harry McCall, Jr.
Chaffe, McCall, Phillips,
Toler & Sarpy
2300 Energy Centre
1100 Poydras Street
New Orleans, Louisiana 70130\
Telephone: (504)585-7000
9. Dow Chemical Co. v. Pitre, et al., Nos. 26,232, 26,620, 26,608 (18th Judicial District
Court), aff'd, 468 So. 2d 747 (La. App. 1st Or. 1985).
In Dow Chemical, I represented the assessor and tax recipient bodies in Iberville
Parish, Louisiana in the trial of three consolidated proceedings which sought to establish the
value of a chemical company's industrial property and pipelines for Louisiana property tax
purposes. The case involved de novo review of certain Louisiana Tax Commission rulings and
dealt with significant issues concerning an assessor's right to information to evaluate property,
the validity of certain industrial property valuation methods, the role of the Tax Commission in
reviewing assessments and the constitutionality of certain property classifications for taxation
purposes. After a three-day trial, the district court adopted the position of the assessor in all
respects. This resulted in an increase in the assessed valuation of the company's property by
over $9 million over the Tax Commission's value and rejection of the company's claims to
another $6 million in reduced assessments. The district court decision was upheld on appeal.
Nature of Participation:
In this litigation, I acted as co-counsel for the assessor,
sheriff and tax recipient bodies, participating in both the
trial of the Tax Commission proceeding and the retrial on
the merits in the district court. In addition, I acted as co-
counsel on the appeal and was primarily responsible for
writing the appellate brief.
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Parties Represented:
James H. Dupont, Iberville Parish Assessor
Freddie H. Pitre, Sheriff, Iberville Parish
Iberville Parish Police Jury
City of Plaquemine
Atchafalaya Basin Levee District
Pontchartrain Levee District
Iberville Parish School Board
Iberville Parishwide Drainage District
Iberville Parish Library
Town of Maringouin
Iberville Parish Gravity Drainage District No. 1
Town of Grosse Tete Waterworks District 2
Iberville Parish Fire District No. 1
Co-Counsel:
Counsel for Dow Chemical
Company:
Michael R. Fontham (lead)
Stone, Pigman, Walther,
Wittmann & Hutchinson
546 Carondelet Street
New Orleans, Louisiana 70130
Telephone: (504)581-3200
G. William Jarman
Kean, Miller
Post Office Box 3513
Baton Rouge, Louisiana 70821
Telephone: (504) 387-0999
Counsel for Louisiana
Tax Commission:
Date of Trial Court Proceedings:
Trial Judge:
Robert H. Abbott, III
Post Office Box 3748
Baton Rouge, Louisiana 70821
Telephone: (504)387-1221
January 17-19, 1983
Honorable Ian Claiborne
18th Judicial District Court
Parish of Iberville
State of Louisiana
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10. CNG Producing Co. v. Indeek Energy Services, Inc., et al., C.A. No. 93-0378 (E.D.
La.).
In Indeek, I served as lead counsel for defendants Indeek Energy Services, Inc.,
Indeek Gas Supply Corp., Indeek Energy Services of Kirkwood, Inc. and Indeck-Kirkwood
Limited Partnership in litigation brought by a gas producing company for the alleged anticipatory
breach of a multimillion dollar, long-term contract to supply natural gas for cogeneration
facilities in New York. Defendants were in the energy cogeneration business, and the suit was
brought in the aftermath of the buyout of one of its projects in development by a New York
public utility. After one and one half years of intense discovery and other pretrial proceedings,
as well as three days of mediation, in which counsel presented all of the factual and legal issues
involved in the dispute, the case was amicably resolved in April 1994. The significance of the
case is that it involved complex issues of liability and damages arising in highly technical
industries and that the parties successfully used alternative dispute resolution procedures, first
with an outside mediator, and then with the Magistrate Judge, to effect a settlement. The use
of mediation avoided a two-to-three week jury trial, which would otherwise have begun in
federal court in New Orleans in May 1994.
Nature of Participation:
Lead trial counsel for defendants
Co-Counsel for Defendants,
Indeek Energy Services,
Inc., et al.
C. Lawrence Orlansky
Stone, Pigman, Walther, Wittmann & Hutchinson
546 Carondelet Street
New Orleans, Louisiana 70130
Telephone: (504)581-3200
Peter John
Hedlund, Hanley & John
233 South Wacker Drive, Suite 5700
Chicago, Illinois 60606
Telephone: (312)441-8641
Counsel for Plaintiff,
CNG Producing Co.
John McCollam
James L. Weiss
Scott O'Connor
Douglas McCollam
Gordon, Arata, McCollam & Duplantis, L.L.P.
Suite 4000
201 St. Charles Avenue
New Orleans, Louisiana 70170
Telephone: (504)582-1111
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Trill Judge: Honorable Ginger Berrigan
United States District Court
Eastern District of Louisiana
Magistrate: Honorable Michaelle Pitard Wynne (now deceased)
United States Magistrate
United States District Court
Eastern District of Louisiana
19. Legal Activities: Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters that
did not involve litigation. Describe the nature of your participation in this question,
please omit any information protected by the attorney-client privilege (unless the
privilege has been waived.)
During my career, I have handled more than 100 litigated matters in federal and
state courts, which provided valuable experience, even when they did not result in trials
on the merits. My nontrial litigation experience has involved highly complex cases in
which I have drafted myriad pleadings and briefs, developed litigation plans and
schedules, developed computerized data bases, taken hundreds of depositions, negotiated
and litigated scores of discovery disputes, framed issues for trial, drafted pretrial orders,
briefs and jury instructions, argued dispositive motions and participated in settlement
negotiations. This experience is germane because the ability to handle litigation
effectively in its pretrial stages can sometimes obviate the need for a trial and will always
result in a better-tried case, if a trial in fact takes place. Further, since 1985, I have
handled a number of federal criminal proceedings in the area of antitrust law and defense
procurement fraud, which involved individuals and corporations. This experience has
familiarized me with various procedural and substantive aspects of federal criminal law.
I have also worked on a number of posttrial appeals, which have provided retrospective
insight into the trial process.
Illustrative of some of the other litigation I have handled are approximately 17
antitrust cases that were settled or, in which I obtained dismissals, prior to trial. I have
also handled a number of cases involving unfair competition, trademark and trade name
protection issues. For example, I represented the NCAA as lead counsel in protecting
its licensed trademarks in connection with the Final Four Basketball Championship
Games in New Orleans in 1993 and in 1987. I have done similar litigation for a number
of other businesses, including a bottled water company, a hotel chain, and a nuclear
pharmacological concern. I have also handled numerous securities fraud cases for
plaintiffs and defendants. For example, for several years, I was lead counsel for a major
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146
brokerage firm on all of its Louisiana litigation, and I was co-counsel for the insurgents
in hostile takeover litigation involving Louisiana Land & Exploration Company in 1983.
I have been lead counsel in several oil and gas contract disputes involving matters such
as farm-out agreements, diving contracts, pipeline imbalances, long-term supply
contracts, and exchange agreements. I was co-counsel in major construction litigation
involving the runways at the New Orleans airport, and I have handled general contract
litigation involving matters such as distributorship agreements, leases, and sales.
In addition to litigation matters, I have advised clients on the antitrust implications
of a number of mergers, as well as on the antitrust issues raised by professional medical
peer review and the establishment of alternative health care delivery systems.
~ *t " utn
147
n. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated receipts from deferred income
arrangements, stock, options, uncompleted contracts and other future benefits which
you expect to derive from previous business relationships, professional services, firm
memberships, former employers, clients, or customers. Please describe the
arrangements you have made to be compensated in the future for any financial or
business interest.
Under the Stone, Pigman partnership agreement, upon my withdrawal, my
professional corporation will be entitled to my partnership percentage (currently 2.63%)
of $100,000, plus my pro rata share of net distributable income during the year of
withdrawal, plus a "guaranteed payment" of 50% of my average annual distributions for
the three preceding calendar years. Unless the firm agrees to prepay this obligation, the
guaranteed payment plus interest is payable over five years from the anniversary of the
event of withdrawal. I understand that Carondelet Title Services, Inc., a corporation
owned by Stone, Pigman partners, will repurchase my stock for a nominal, lump sum
when I withdraw from Stone, Pigman.
In addition, I am a participant in the Stone, Pigman, Walther, Wittmann &
Hutchinson 401-K Profit Sharing Plan. The firm does not contribute on my behalf to the
plan. I make contributions to a self-directed account within the plan. Upon my
withdrawal from the firm, I will make no more contributions to the plan. At that time,
I may leave the proceeds of my retirement account in the Stone, Pigman plan or roll
them over into some other retirement plan vehicle.
2. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern. Identify the
categories of litigation and financial arrangements that are likely to present potential
conflicts-of-interest during your initial service in the position to which you have been
nominated.
In resolving potential conflicts of interests, I will be vigilant to avoid any
appearance of partiality I will recuse myself in all situations required by the Code of
Judicial Conduct and make disclosures of information relevant to the question of
disqualification, even if I believe there is no real basis for disqualification. When a
situation is doubtful, I will exercise my judgment on the side of recusal to avoid even the
appearance of partiality
I will recuse myself in all cases in which members of my former law firm served
as attorneys while I was associated with the firm, until my financial interest in the firm
has been liquidated, or two years from my withdrawal from the firm, whichever is latest.
-48
<u«v
148
In addition, I will recuse myself whenever my relationship with any particular member
of my former firm is so close as to impair my impartiality. I will also recuse mvself in
cases in which my husband or my brothe- -in-law appears as an attorney In addition, I
will recuse myself in cases involving attorneys from my husband's law firm, as long as
my husband and I maintain a community property estate.
3. Do you have any plans, commitments, or agreements to pursue outside employment,
with or without compensation, during your service with the court? If so, explain.
No.
4. List sources and amounts of all income received during the calendar year preceding
your nomination and for the current calendar year, including all salaries, fees,
dividends, interest, gifts, rents, royalties, patents, honoraria, and other items
exceeding $500 or more. (If you prefer to do so, copies of the financial disclosure
report, required by the Ethics in Government Act of 1978, may be substituted here.)
See attached financial disclosure report (Attachment A).
5. Please complete the attached financial net worth statement in detail (Add schedules
as called for).
The Financial Statement of Sarah S. Vance and R. Patrick Vance is attached (Attachment
B). Assets and liabilities are community property of both spouses.
6. Have you ever held a position or played a role in a political campaign? If so, please
identify the particulars of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
No.
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MHV
149
m. GENERAL (PUBLIC)
1. An ethical consideration under Canon 2 of the American Bar Association's Code of
Professional Responsibility calls for "every lawyer, regardless of professional
prominence or professional workload, to find some time to participate in serving the
disadvantaged." Describe what you have done to fulfill these responsibilities, listing
specific instances and the amount of time devoted to each.
With other members of my firm, I have represented an indigent criminal
defendant in an aggravated rape case and a minor child in child neglect proceedings. In
addition, I served for several years on the Louisiana State Bar Association's Client
Security Fund Committee, which met periodically to approve payments to clients whose
attorneys misused client funds. I am currently working with the American Bar
Association's Section of Antitrust Law to develop an appropriate contribution to a New
Orleans public school in connection with the ABA s Annual Meeting in New Orleans.
My law firm has a partnership with a New Orleans public school, which involves
providing ongoing support for enrichment activities such as field trips, book purchases,
subscriptions, and special appearances by the New Orleans ballet. The firm also hires
students from this school to work on a part-time basis. I recently gave the Award's
Night address at another New Orleans public school and will participate in a program for
Explorer Scout's on career opportunities in the law.
I have been a member of civic groups that support the New Orleans Museum of
Art, the New Orleans Symphony and the Audubon Zoo and have worked on various
committees and fund-raising efforts of these groups. Further, I have given hundreds of
hours of my time to prepare extensive written materials and to teach at numerous legal
education seminars sponsored by national and state bar associations.
The American Bar Association's Commentary to its Code of Judicial Conduct states
that it is inappropriate for a judge to hold membership in any organization that
invidiously discriminates on the basis of race, sex, or religion. Do you currently
belong, or have you belonged, to any organization which discriminates — through
either formal membership requirements or the practical implementation of
membership policies? If so, list, with dates of membership. What have you done
to try to change these policies?
No. From 1983 to 1986, 1 was a member of the Krewe of Iris, a women's Mardi
Gras parading organization. Traditionally, Mardi Gras krewes were made up of men,
and Iris gave women an opportunity to participate in Mardi Gras parades.
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The Committee should be aware, however, that since 1990 I infrequently played
tennis at a tennis club in New Orleans of which my husband, R. Patrick Vance, is a
member. The club allows both men and women to be members but does not allow
women members to own voting stock in the club. I am not a member, but am entitled
to use the club's courts because I am the spouse of a member. Frustrated by the realities
that resulted from the club's policies, I have not used the club's courts, except on
infrequent occasions. I now play only at the public courts which I have used regularly
over the last three years.
3. Is there a selection commission in your jurisdiction to recommend candidates for
nomination to the federal courts? If so, did it recommend your nomination? Please
describe your experience in the entire judicial selection process, from beginning to
end (including the circumstances which led to your nomination and interviews in
which you participated).
There is no selection commission in my jurisdiction. In early 1993, 1 sent a letter
and a resume to Senator J. Bennett Johnston, asking to be considered as a candidate for
nomination to the federal district court bench in New Orleans. I was interviewed by
Senator John B. Breaux and by Senator J. Bennett Johnston on October 28, 1993. On
January 31, 1994, Senators Breaux and Johnston wrote to President Clinton
recommending me as a candidate for the federal district court bench in New Orleans,
Louisiana.
On April 7, 1994, I was interviewed by Assistant Attorney General, Eleanor D.
Acheson, and several other U.S. Justice Department attorneys in Washington, D.C.
Shortly thereafter, in April 1994, 1 was interviewed in New Orleans, Louisiana by two
representatives of the Federal Bureau of Investigation. On May 10, 1994, I was
interviewed in New Orleans, Louisiana by a representative of the Standing Committee
on the Federal Judiciary of the American Bar Association. On June 8, 1994, President
Clinton nominated me to be a United States District Judge for the Eastern District of
Louisiana.
4. Has anyone involved in the process of selecting you as a judicial nominee discussed
with you any specific case, legal issue or question in a manner that could reasonably
be interpreted as asking how you would rule on such case, issue, or question? If so,
please explain fully.
No.
51 - turn
151
5. Please discuss your views on the following criticism involving "judicial activism."
The role of the Federal judiciary within the Federal government, and within society
generally, has become the subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism that alleges that the
judicial branch has usurped many of the prerogatives of other branches and levels
of government. Some of the characteristics of this "judicial activism" have been said
to include:
a. A tendency by the judiciary toward problem-solution rather than
grievance-resolution;
A tendency by the judiciary to employ the individual plaintiff as a
vehicle for the imposition of far-reaching orders extending to broad
classes of individuals;
A tendency by the judiciary to impose broad, affirmative duties upon
governments and society;
d. A tendency by the judiciary toward loosening jurisdictional
requirements such as standing and ripeness; and
A tendency by the judiciary to impose itself upon other institutions in
the manner of an administrator with continuing oversight
responsibilities.
Under the United States Constitution, the federal judiciary is given
limited authority in the tripartite system of American government. While
the legislative branch is empowered to make laws, and the executive
branch, to enforce them, the role of the judicial branch is to apply the law
to cases arising within the confines of its defined jurisdiction.
For the Constitutional separation of powers to be preserved, the
federal judiciary must avoid impinging upon the functions of the other two
branches of government. Adherence to established requirements of
standing and ripeness is therefore necessary to assure that judicial
61190/
152
authority is exercised within the constitutional bounds of concrete cases
or controversies. Judicial authority should not be exerted over the
assertion of generalized grievances by those with no legally protectable
interest in the outcome of the case.
Because federal courts may not exercise administrative or
legislative power, they should not impose relief that is any broader than
necessary for the fair resolution of the disputes between the parties before
them. Federal courts should also respect the boundaries of the federal
system and not intrude upon the legitimate province of state government.
When, however, a federal court is presented with a controversy properly
within its jurisdiction, it should not shrink from deciding it because it
presents an issue that is difficult, controversial or inconvenient.
53 - 6ii«o/
153
ATTACHMENT A
Report Required by tae f.Mci
FINANCIAL DISCLOSURE REPORT BS58.rjyK-3Ci.fe *■
(5 U.S.C.A. App. 6, SS101-112}
1. Person Reporting [Last nose, first, Riddle lnitia
Vance , Sarah S.
2. Court or Organization
United States District Court
Eastern District of Louisiana
3. Date of Report
June 15, 1994
4. Title (Article III Judges Indicate active or
■enior status; Magistrate fudges indicate
full- or part-tiae)
Nominee to Federal District Court
Report Type ( c!*.eck appropriate type)
X Soolnatlo.-., Date 6/8/94
Initial Annual Final
6. Reporting Period
January 1 , 1 993-
June 1 , 1 994
7. Chambers or Office Addreee
546 Carondelet Street
New Orleans, Louisiana 70130
On tne basis of the Information contained in tbls Report, It
Is, is sy opinion. In cospllance wltb applicable laws end
regulations
Reviewing Officer Signature
IMPORTANT NOTES: The instructions accompanying this form must be followed. Complete all parts,
checking the NONE box for each section where you have no reportable information. Sign on last page.
I. POSITIONS. (Reporting individual only, see pp. 7-8 of Instructions.)
POSITION NAME OF ORGANIZATION/EN
□
NONE (No reportable positions)
President, Director, Employee Sarah S. Vance, A Professional Law Corporation.
This professional corporation is a partner in
the law firm Stone, Pioman, Walther, wittmann &
Hutchinson ( "SPWWH ") . '
(ContimiPfH
II. AGREEMENTS. (Reporting individual only, see p. 8-9 of Instructions.)
DATE PARTES AND TERMS
□
NONE (No reportable flgreeMnni
January 1 , 1 990 , Under the partnership agreement of SPWWH. I am entitled noon
as amended in ' withdrawal to my partnership share (currently 2.63%) of
1 991 ,1 992, 1 993 SI 00, 000, plus my pro rata share of net distributable income
ana l y y 4 during the year of withdrawal, plus a "guaranteed payment" of
50% of my average annual distributions for the three preceding
( continued )
III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 9-12 of Instructions.)
DATE
(Honoraria only)
SOURCE AND TYPE
GROSS INCOME
(yours, not spouse's)
NONE (Ho reportable rton-inveetsent lneoae)
1 994 to date Sarah S. Vance, A Professional Law Corporation- S_
income from law practice with SPWWH.
Walker. Waechter . Poitevent. Carrprp A S_
69.293.48
1 992 to date(S) Jones
3
1993
1993
1993
( Continued)
Denegre - income from law practice
Sarah S. Vance. A Professional Law Cnrpnrat- i nn- $ 284 , 640
income from law practice with SPWWH
The 546 Company - income from office building $ 7 r 877
partnership
Carondelet Title Services, INc. (a Subchapter "s"$ 481.00
Corp.) - distributions from title insurance agency
154
n>m o* Faraon Raportlng
Data of Raport
FINANCIAL DISCLOSURE REPORT (confd)
Vance , Sarah S.
June 1S. 1994
IV. REIMBURSEMENTS and GIFTS -- transportation, lodging, food, entertainment.
(Includes Ihoie to spouse ■od dependent children; u»e the parentheticals "(S)' and "(DC)" to Indicate reporuble
reimbursements and gifts received by spouse and dependent children, respectively. See pp.13-15 of Instructions.)
IlKSCKlPTION
n
source
NONE («o -•.. t. i.,-.,..i.i. ■ •' «.«i • •—'.■ ■ or alft«)
EXEMPT
V. OTHER GIFTS. (Includes those to spouse and dependent children; use the parentheticals "(S)" and "(DC)" to
Indicate other gifts received by spouse and dependent children, respectively. See pp.15-16 of Instructions.)
SOURCE DESCRIPTION VALUE
NONE (Mo • ■ -i • '• i- gltta)
1
EXEMPT
VI LIABILITIES. (Includes those of spouse and dependent children; indicate where applicable, person
for liability by using the parenthetical "(S)" for separate liability of spouse, 'IS)' for Joint liability or
Individual and spouse, and "(DC)" for liability of a dependent child. See pp. 16-18 oflnstnictions.)
a
individual 'and spouse, and "(DC)" for liability
(KKI)ITOK
dependent child. See pp.]
DKSCK1ITION
responsible
reporting
VALUE CODE*
NONE (no ,.,.... i.i.i. u.i.nn i..|
SPWWH 401 (K)
Loan from profit-sharing plan (J)
Profit Sharing Plan - Sarah S. Vance
'Jgofgevgn^e5Arrg?S^e56neT^ Loan from profit-sharing plan (J) K
Profit Sharing Retirement Plan-
Robert Patrick Vance
First National Bank of
'Commerce
#* 7-
3% of
SPWWH's loans, which will be
released upon withdrawal from
SPWWH (J)
K (Contingent )
VALUE COOMl
J - $13,000 or laia
H - 32)0,001 to $300,000
K - $13,001 to 130,000
O - $300,001 to $1,000,000
$30,001 to $100,000
Mora than $1,000,000
H a $100,001 to $230,000
155
FINANCIAL DISCLOSURE REPORT (cont'd)
Naaa o' Paraon Paportlng
Vance, Sarah S.
Data of P-aport
June 15, 1 994
VII. INVESTMENTS and TRUSTS -- income, value, transactions, (includes those or spouse
and dependent children; see pp. 18-27 or Instructions.)
a.
Oaacrlptlon of Aaaata
(including truat aaaata)
Indlcata, wbara appllcabla, ownax of
tha aaaat by ualng tna paranthatlcal
•(J)" far joint ovnarahlp of raport-
lng Individual and apouaa, "(3) tor
aaparata ownaranlp by apouaa. *(DCJ"
for ovsaxahlp by dapandant child.
Placa "'!)■ aftar aaeh aaaat
axanpt Ixoa prior dlacioaura.
B.
Incooa
during
raportlng
parlod
c.
oroaa valua
at and of
raportlng
parird
D.
Tranaactiona during raportlng parlod
(1)
ABC,
Coda1
(A-B)
(2)
,Typ»
div. ,
rant or
int.)
(1)
Valoa?
Coda*
(J-P)
(2)
Valua
Katnod-,
CodaJ
IQ-W)
Typa
buy.aall.
Bazaar,
radaaip-
tlonj
If not aataapt from dlacloaura
iata:
HontB<
(3)
COoV
(J-P)
I*)
Gailn*
Cod*1
lll-B)
Xdaatity of
fir prlvata
tr*o Motion)
NONE (Ho raportabla
lncoata, aaaata, or
I tranaactiona)
EXE
VFT
1 Sarah S. Vance IRA
2 Louisiana, as follows: (J)
3 a) 948.7148 Merrill Lynch
Gov't. Mortqaqe Fund Class
A
Div./
Int.
J
T
4 B
5 b) 1212.9800 Merrill Lynch
Retirement Reserves
A
Div./
Tnf.
J
T
6 g) 270 U.S. Treasury Strips
tone
ttone
J
T
' 2. Sarah S. Vance IRA
Ftol lover, Merrill Lynch -
6 New Orleans, Louisiana, as
follows: (J)
« a) 400.0000FEMSA B CP
A
Div./
Int.
J
T
>°b) 1626.7060 Merrill Lynch
Federal Securities Trust
A
Div./
Int.
K
T
"Class B
12c) 538.6370 Merrill Lynch
Senior Floatmq Rate Fund
A
Div./
Int.
J
T
nd) 1100.0000 U.S. Treasury
Strips Zero
tone
None
K
T
"e) Sarah Lee Common
tone
None
J
T
is
(Continued)
16
17
ii
19
20
1 lncmaa/caln Codaa: A-51,000 or laaa B-31.001 to $2,300 c-32,501 to 5,000 D-35,001 to SIS. 000
fSaa Col. 81 * D4) E-S15.001 to 35COOO fS30,001 to 5100. 000 C-3100.001 to 51.000.000 B-Hora than 31.000.000
? Valua Codaa: J-S15.660 or laaa K-ilS.OOi to sSO.Oji 1-530.001 to 3100.000 M-5100,001 to 3250,000
(Saa Col. CI a 03) B-3250.001 to 5300,000 O-3500.001 to 31.0C0.000 P-Hora than 31.000,000
1 Valua Katood Codaa: Q-Appraiaal R-Coat ( raal aatata only) S"Aaaaaaaant T-Caah/Markat
(Saa Col. C2) U-Book Valua V-Othar V-Eatljaatad
156
FINANCIAL DISC 'SURE REPORT (cont'd)
NAae of Parton Bepor-.lng
Vance, Sarah S.
Date of Report
June 1.5 , 1994
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (indicate part of Report)
IX. CERTIFICATION.
In compliance with the provisions of 28 U.S.C § 455 and of Advisory Opinion No. 57 of the Advisory Committee on
Judicial Activities, and to the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudicatory
function in any litigation during the period covered by this report in which I, my spouse, or my minor or dependent children
had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I certify that all information given above (including information pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was
withheld because it met applicable statutory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.C.A app. 7, § 501 et. seq., 5 U.S.C § 7353 and Judicial Conference
regulations.
J^^J. J-^lc^uJ?
Date
W'VY
Signature _
NOTE- ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C.A APP. 6, § 104, AND 18 U.S.C. § 1001.)
FILING INSTRUCTIONS:
Mail signed original and 3 additional copies to:
Judicial Ethics Committee
Administrative Office of the
United States Courts
Washington, DC 20544
157
Name of Person Reporting: Vance, Sarah S.
Date of Report: June 15, 1994
I. POSITIONS. (Continued)
Position Name of Organization/Entity
2. Partner The 546 Company (a partnership of Stone, Pigman
partners formed to develop and lease the office
building occupied by the firm).
80856;
158
Name of Person Reporting: Vance, Sarah S.
Date of Report: June 15, 1994
II. AGREEMENTS. (Continued)
Date
1. January 1,
1 9 9 0 , a s
amended in
1991, 1992,
1993 and 1994
(Continued)
Parties and Terms
calendar years. Unless the firm agrees to prepay
this obligation, the guaranteed payment plus interest
is payable over five years from the anniversary of
the event of withdrawal. In addition, I am a
participant in the SPWWH 401-K Profit Sharing
Plan. The firm does not contribute on my behalf to
the plan. I make contributions to a self-directed
account within the plan. Upon my withdrawal from
the firm, I will make no more contributions to the
plan.
2.
November
1 990,
amended
8,
a s
Under the terms of the partnership agreement of
The 546 Company, all rights to payments from the
partnership terminate upon withdrawal from the
partnership, which will occur upon withdrawal from
the law firm partnership. Unless The 546 Company
partners agree otherwise, the partnership agreement
provides for partners to remain liable for the
partnership's bank loan and building lease for 18
months following withdrawal from the partnership.
80836/
159
Name of Person Reporting: Vance, Sarah S.
Date of Report: June 15, 1994
HI. NON-INVESTMENT INCOME. (Continued)
Date Source and Type Gross Income
1992 Sarah S. Vance, A Professional Law 5238,296
Corporation - income from law
practice with SPWWH.
1992 The 546 Company - income from $ 2,255
office building partnership
1992 Carondelet Title Services Inc. (a $ 1,732
Subchapter "S" Corp.) - distributions
from title insurance agency
-3-
80856/
160
Name of Person Reporting: Vance, Sarah S.
Date of Report: June 15, 1994
VI. LIABILITIES. (Continued)
Creditor
First National Bank of
Commerce
First National Bank of
Commerce
Tufts Oil and Gas -
III Limited
Partnership; Crutcher
Oil and Gas - III
Limited Partnership
Description
Contingent liability under guarantee
of pro rata share of Jones, Walker's
line of credit (J)
Contingent liability under guarantee
of 110% of 2.64% of The 546
Company's industrial revenue bond
financing (J)
Contingent liability under guarantee
of 150% of 2.64% of 110% of The
546 Company's lease obligations (J)
Value Code
K (Contingent)
L (Contingent)
K (Contingent)
80836/
161
Name of Person Reporting: Vance, Sarah S.
Date of Report: June 15, 1994
VH. INVESTMENTS and TRUSTS (Continued)
A.
Description of Assets
B. Income
C. Gross Value
(1)
Amt. Code
(2)
Type
(1)
Value
Code
(2)
Value
Method
Code
3. SPWWH 401 (K) Profit
Sharing Plan - Sarah S.
Vance,
First National Bank of
Commerce, New
Orleans, Louisiana, as
follows: (J):
(a) 4825 GNMA II
A
Div./Int.
J
T
(b) 79180 Money
Mkt
A
Int.
L
T
(c) 350.0000 Nestle
S.A. Common
A
Div.
J
T
(d) 50,000 Note from
SSV
A
Int.
K
T
4. R. Patrick Vance IRA,
Merrill Lynch, New
Orleans, Louisiana, as
follows (J):
(a) 400.0000 FEMSA
BCP
A
Div./Int.
J
T
-5
80856/
162
Name of Person Reporting: Vance, Sarah S.
Da:: of Report: June 15, 1994
A.
Description of Assets
B. Income
C. Gross Value
(1)
Amt. Code
(2)
Type
(1)
Value
Code
(2)
Value
Method
Code
(b) 712.0000 Merrill
Lynch Gov't.
Mortgage Fund
Class B
A
Div./Int.
J
T
(c) 270.0000 U.S.
Treasury Strips
Zero
None
None
J
T
5. Jones, Walker,
Waechter, Poitevent,
Carrere & Denegre Profit
Sharing Retirement Plan
- R. Patrick Vance
Fidelity Investments, as
follows (J):
(a) 1566 Balanced
Fund
A
Div.
K
T
(b) 950 Growth &
Income
A
Div.
K
T
(c) 735 Growth Co.
B
Div.
K
T
(d) 298 Magellan
B
Div.
K
T
(e) 780 Overseas
A
Div.
K
T
(f) 124.177 Ret
Gov't. (Money
Market)
D
Div.
M
T
(g) 967 U.S. Bond
A
Int.
J
T
6-
80856/
163
Name of Person Reporting: Vance, Sarah S.
Date of Report: June 15, 1994
A.
Description of Assets
B. Income
C. Gross Value
(1)
Amt. Code
(2)
Type
(1)
Value
Code
(2)
Value
Method
Code
(h) 50,000 Note from
RPV
A
Int.
K
T
6. R. Patrick Vance and
Sarah S. Vance Cash
Management Account,
Merrill Lynch, New
Orleans, Louisiana, as
follows (J):
(a) 500 AMI
Common
A
Div.
J
T
(b) 42 Exxon
Common
A
Div.
J
T
(c) 840 Merrill Lynch
MUN. BND
A
Div.
J
T
(d) 145 Merrill Lynch
MUN. INC.
A
Div.
J
T
(e) Flagship
Louisiana Tax
Exempt Fund
Class C
None
None
J
T
7. 348.812 First Commerce
Corp. Common (J)
A
Div.
J
T
7 -
80856/
164
Name of Person Reporting: Vance, Sarah S.
Date of Report: June 15, 1994
A.
Description of Assets
B. Income
C. Gross Value
(1)
Amt. Code
(2)
Type
(1)
Value
Code
(2)
Value
Method
Code
8. Robert Patrick Vance, Jr.
Trust, Ann M. Ourso,
Trustee,
Merrill Lynch, New
Orleans, Louisiana, as
follows (DC):
(a) Cash
A
Int.
J
T
(b) 128.1079
Delaware
DELCAP Fund
A
Div./Int.
J
T
(c) 460.000 Gov't.
Trust Certificates
Zero Coupons
None
None
K
T
(d) 163.3806
SMALLCAP
World Fund Inc.
A
Div./Int.
J
T
(e) 470.0000 TIGR
Principal Series
14 Zero
None
None
K
T
9. The 546 Company
Partnership Interest (J),
New Orleans, Louisiana
B
Distribution
J
U
10. Life Insurance -
Connecticut Mutual (J)
None
None
J
T
80856/
165
Name of Person Reporting: Vance, Sarah S.
Date of Report: June 15, 1994
A.
Description of Assets
B. Income
C. Gross Value
(1)
Amt. Code
(2)
Type
(1)
Value
Code
(2)
Value
Method
Code
11. Sarah S. Vance and R.
Patrick Vance Checking
and Money Market
Accounts (J), First
National Bank of
Commerce, New
Orleans, Louisiana
A
Int.
K
T
12. Carondelet Title
Insurance Agency Stock
A
Distribution
J
U
80136/
166
ATTACHMENT B
FINANCIAL STATEMENT OF
SARAH S. VANCE AND R. PATRICK VANCE,
AS OF MARCH 12, 1994
ASSETS
Cash on Hand and in Banks
$ 22,586.19
U.S. Government Securities
Listed Securities (See Schedule One)
28,538.00
Unlisted Securities
Accounts and Notes Receivable:
Real Estate Owned (1821 State Street, New Orleans,
Louisiana 70118)
620,000.00
Real Estate Mortgages Receivable
Autos and Other Personal Property
215,000.00
Cash Value-Life Insurance
5,382.00
OTHER ASSETS
IRA/Keogh Portfolios: (See Schedule One.)
Merrill Lynch ("ML") SSV IRA
16,824.00
ML SSV 401(k)
62,383.00
First National Bank of Commerce SSV 401 (k)
116,938.00
ML RPV IRA
16,743.00
Fidelity Investments (RPV Profit Sharing
Retirement Plan)
286,814.00
The 546 Company
1,000.00
TOTAL ASSETS
$1,392,208.19
81229/
167
LIABILITIES
Notes Payable to Banks - Secured
Notes Payable to Banks - Unsecured
Notes Payable to Relatives
Notes Payable to Others (See Schedule Two, Note 1.)
96,803.45
Accounts and Bills Due
17,195.00
Unpaid Income Tax
Other Unpaid Tax and Interest
Real Estate Mortgages Payable to Premier Bank
478,488.59
Chattel Mortgages
Other Debts
TOTAL LIABILITIES
NET WORTH
TOTAL LIABILITIES AND NET WORTH
$ 592,487.04
759,721.15
1,392,208.19
CONTINGENT LIABILITIES
GENERAL
INFORMATION
As Endorser, Comaker or Guarantor (See Schedule
Two, Notes 2 and 3.)
Are any assets pledged?
No, except for mortgage
on 1821 State Street.
On Leases or Contracts (See Schedule Two, Note 3.)
Are you defendant in any
suits or legal actions?
(See Schedule Two, Note
4.)
Legal Claims - None
Have you ever taken
bankruptcy? No.
Provision for Federal Income Tax - None
Other Special Debt - None
2-
81229/
168
Robert Patrick Vance. Jr.
Robert Patrick Vance, Jr. is the beneficiary of a trust with assets worth
$63,501.50. These assets are itemized on Sch. ule One, attached.
3 - 81229/
169
SCHEDULE ONE
TO
MARCH 1994 FINANCIAL STATEMENT
OF
SARAH S. VANCE AND R. PATRICK VANCE
Portfolio: Merrill Lynch SSV IRA
Unsold Assets:
948.7148 Merrill Lynch Government
Mortgage Fund Class B
$6,498.70
5.2300 Merrill Lynch Federal Securities
Trust Class A
52.20
1212.9800 Merrill Lynch Retirement
Reserves
1,213.00
270.0000 U.S. Treasury Strips Zero
9,060.39
TOTALS:
$16,824.26
Portfolio: Merrill Lynch SSV 401 (k)
Unsold Assets:
400.0000 FEMSA B CP
$2,345.70
1626.7060 Merrill Lynch Federal
Securities Trust Class B
16,071.86
1554.7800 Merrill Lynch Retirement
Reserves
1,554.78
538.6370 Merrill Lynch Senior Floating
Rate Fund
5,398.76
1100.0000 U.S. Treasury Strips Zero
37,011.70
TOTALS:
$62,382.80
81229/
170
1
Portfolio: First National Bank of Commerce SSV 401(k)
Unsold Assets:
5521.0000 GNMA II
6,038.87
45780.0700 MONEY MKT
45,780.07
350.0000 NESTLE S.A
15,119.30
50,000.00 NOTE from SSV
50.000.00
TOTALS:
$116,938.24
Portfolio: Merrill Lynch RPV IRA
Unsold Assets:
400.0000 FEMSA B CP
$2,345.70
712.0000 Merrill Lynch Government
Mortgage Fund Class B
4,877.20
5.1410 Merrill Lynch Federal Securities
Trust Class A
51.31
158.5800 Merrill Lynch Retirement
Reserves
158.58
270.0000 U.S. Treasury Strips Zero
9,309.87
TOTALS:
$16,742.66
Portfolio: Fidelity Investments - RPV
Unsold Assets:
802.8940 BALANCED FUND
$10,750.75
503.1880 GROW & INC.
11,180.84
397.3740 GROWTH CO.
11,547.69
162.6270 MAGELLAN
11,522.12
428.9020 OVERSEAS
11,764.78
169581.0300 RET GOV'T
169,581.03
-5
81229/
171
951.5390 U.S. BOND
10,466.93
50,000.00 NOTE from RPV
50,000.00
TOTALS:
$286,814.14
Portfolio: MERRILL Lynch
Unsold Assets:
500.0000 AMI
$3,000.00
42.0000 EXXON
2,761.50
840.0000 Merrill Lynch MUN BND
9,248.40
145.0000 Merrill Lynch MUN INC
1,523.95
TOTALS:
$16,533.85
Portfolio: FstCommCorp
Unsold Assets:
321.1850 FSTCOMMCOR
$12,003.78
TOTALS:
$12,003.78
Portfolio: RPV Jr. TRUST
Unsold Assets:
5270.3100 CASH
$5,270.31
128.1079 Delaware Group DELCAP
Fund
3,390.00
460.0000 GOVT TRUST Certificates
Zero Coupons
27,359.42
163.3806 SMALLCAP World Fund Inc.
3,881.92
470.0000 TIGR Principal Series 14 Zero
23,600.11
TOTALS:
$63,501.50
-6
81229/
172
SCHEDULE TWO
NOTES TO MARCH, 1994 FINANCIAL STATEMENT
OF
SARAH S. VANCE AND R. PATRICK VANCE
NOTE 1.
Notes Payable to Others consists of two notes of approximately equal amounts
owed to the respective profit-sharing plans of SSV and RPV.
NOTE 2.
RPV as a partner in JWWPCD has guaranteed $42,000 of the FNBC $1,500,000
line of credit to the firm.
SSV has guaranteed 150% of her 2.63% partnership share of $1,235,000 in
loans from FNBC to the partnership of Stone, Pigman, Walther, Wittmann &
Hutchinson. She has been advised that when she withdraws from the firm, her
guaranty will be released, provided there are no defaults on the loans.
NOTE 3.
This information is provided in connection with SSV's 2.64% partnership
interest in The 546 Company Partnership and related personal liability.
The interest in The 546 Company is carried with a nominal value of $1,000 on
the Financial Statement.
7 -
173
The 546 Company lease and financing documents provide the following liability
to the partners:
1. Lease. The lease to the 546 Company is "in rem" except for the
express guaranty set forth in the Guaranty Agreement. Therein,
the law firm of SPWWH guarantees the obligations of the lessee,
The 546 Company, but again only "in rem". The individual
partners of The 546 Company guarantee the lease on a pro rata
basis for a "maximum amount" for each Guarantor. The
Maximum Amount is the following formula:
110% [P x (150% Annual Base Rent)]
The letter "P" is the individual Guarantor's percentage in The 546
Company. "P" will change from time-to-time as new partners are
admitted to The 546 Company. The current annual lease
obligation is $465,000. The individual Guarantors also guarantee
in solido the payment of any deductible amounts not covered by
insurance or any losses resulting from failure to maintain the
required insurance, as well as the completion of the initial
renovations. However, as a practical matter, this exposure seems
minimal.
2. Industrial Revenue Bond Financing. The Industrial Revenue Bond
Financing is an "in rem" obligation of The 546 Company.
However, a Guaranty agreement obligates the individual partners
and the law firm of SPWWH as set forth herein for the obligation.
The law firm guarantees the obligations of The 546 Company but
only on an "in rem" basis with regard to the assets of the law
firm. Each individual Guarantor is obligated only to the extent of
110% of the amount determined by multiplying the partnership
percentage of the individual Guarantor in The 546 Company times
the aggregate outstanding principal balance of the bonds. If the
percentages of the partners change, the original percentages apply
until the First National Bank of Commerce approves an
amendment to the Guaranty Agreement. The principal balance on
the bonds is $2.7 million.
-8
81229/
174
NOTE 4.
RPV has been named as a defendant in a civil action for alleged defamation filed
in civil district court for the parish of Orleans. The plaintiff is an attorney/party
who was involved in litigation personally adverse to RPV's client. The plaintiff
lost the litigation and filed this suit along with several complaints against RPV.
All of the other litigation filed by the plaintiff against RPV has been dismissed
adverse to the plaintiff. RPV believes that this lawsuit has no merit and is worth
nothing as a contingent liability. The suit is currently dormant.
9 - 81229/
175
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (Include any former names used.)
William Curtis Bryson
2. Address: List current place of residence and office
address (es) .
Home: 783 3 Aberdeen Rd.
Bethesda, Md. 20814
Office: Office of the Associate Attorney General
U.S. Department of Justice
Washington, D.C. 20530
3. Date and place of birth.
August 19, 1945, in Houston, Texas.
4. Marital Status (include maiden name of wife, or husband's
name). List spouse's occupation, employer's name and business
address (es) .
Spouse's name: Julia Penny Clark
Spouse's occupation: Lawyer
Name of spouse's employer and spouse's business address:
Bredhoff & Kaiser
1000 Connecticut Avenue, N.W.
Washington, D.C. 20036
5. Education: List each college and lav school you have attend-
ed, including dates of attendance, degrees received, and dates
degrees were granted.
Attended Harvard College, 1963-1969. Awarded A.B. magna cum
laude in 1969.
Attended University of Texas School of Law, 1970-1973.
Awarded J.D. in 1973.
176
6. Employment Record; List (by year) all business or profession-
al corporations, companies, firms, or other enterprises,
partnerships, institutions and organizations, nonprofit or
otherwise, including firms, with which you were connected as
an officer, director, partner, proprietor, or employee since
graduation from college.
1969-1970: Newsday (reporter for Long Island, N.Y.,
newspaper) .
1972: O'Melveny & Myers, Los Angeles, Calif, (summer intern
for law firm during law school) .
1973-1975: U.S. Government. Law clerk to Hon. Henry
Friendly, U.S. Court of Appeals for the Second Circuit
(1973-1974). Law clerk to Hon. Thurgood Marshall, U.S.
Supreme Court (1974-1975).
1975-1978: Miller, Cassidy, Larroca & Lewin, Washington, D.C.
(associate with law firm) .
1978-present: U.S. Government, U.S. Department of Justice.
Assistant to the Solicitor General (1978-1979); Chief,
Appellate Section, Criminal Division (1979-1982); Special
Counsel, Organized Crime and Racketeering Section, Criminal
Division (1982-1986); Deputy Solicitor General (1986-1994);
Deputy Associate Attorney General and Acting Associate
Attorney General (March 1994-present) .
7. Military Service: Have you had any military service? If so,
give particulars, including the dates, branch of service, rank
or rate, serial number and type of discharge received.
No.
8. Honors and Awards: List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
Harvard College:
John Harvard Scholarship "in recognition of academic
achievement of the highest distinction."
Detur Prize based on cumulative academic record.
177
University of Texas School of Law:
Three-year academic scholarship
Elected to Chancellors organization, served as Grand
Chancellor (membership based on academic standing) .
Department of Justice:
1983: Department of Justice Special Commendation Award
1983: Department of Justice John Marshall Award for
Outstanding Legal Achievement in Appellate Advocacy. One
awarded annually within the Department.
1984: Federal Bar Association, 25th Annual Tom C. Clark
Award. One awarded annually to federal agency lawyer for
outstanding service as a government lawyer.
1985: Department of Justice Exceptional Service Award.
Department's highest award. One awarded annually to a
Justice Department attorney for exceptional service to
the Department.
1990: First recipient of Beatrice Rosenberg Award. One
awarded annually by the D.C. Bar for outstanding service
as a government attorney.
1991: Presidential Distinguished Rank Award. Highest
award given to senior executive service employees.
1993: Attorney General's Award for Management.
1993: University of Texas Law School Foundation, Public
Service Award.
Bar Associations: List all bar associations, legal or
judicial-related committees or conferences of which you are or
have been a member and give the titles and dates of any
offices which you have held in such groups.
D.C. Bar: 1975 to present.
Served on Nominations Committee of D.C. Bar, 1988-1989
(committee selects candidates for offices in the D.C. Bar) .
Served on Continuing Legal Education Committee of D.C. Bar,
1990-1992.
American Law Institute, elected to membership in 1989;
sustaining member 1989 to present.
178
Court of Military Appeals: member of committee to redraft the
rules of the Court of Military Appeals, 1979-1980.
Conference on the Rule of Law (1990) : member of a delegation
to the Soviet Union to confer with Soviet officials on the
rule of law as applied in the American and Soviet legal
systems. Delegation was led by the Deputy Attorney General.
Anglo-American Legal Exchange (1980) : member of a delegation
of approximately a dozen American lawyers and judges to do a
comparative study of the American and English criminal justice
systems. Delegation was led by the Chief Justice of the
United States.
10. Other Memberships: List all organizations to which you belong
that are active in lobbying before public bodies.
None.
Please list all other organizations to which you belong.
Northern Virginia Astronomy Club.
11. Court Admission: List all courts in which you have been
admitted to practice, with dates of admission and lapses if
any such memberships lapsed. Please explain the reason for
any lapse of membership. Give the same information for
administrative bodies which require special admission to
practice.
District of Columbia Court of Appeals, November 25, 1975.
United States Court of Appeals for the District of Columbia
Circuit, February 24, 1976.
United States Court of Appeals for the Seventh Circuit, May
14, 1976.
United States Court of Appeals for the Fourth Circuit, May 11,
1978.
United States Court of Appeals for the Fifth Circuit, October
17, 1979.
United States Court of Appeals for the Ninth Circuit, October
26, 1979.
United States Court of Appeals for the Second Circuit, March
12, 1980.
179
United States Court of Appeals for the Tenth Circuit, April
30, 1980.
United States Court of Appeals for the Eighth Circuit, July
23, 1981.
United States Court of Appeals for the Eleventh Circuit,
October 1, 1981.
United States Court of Appeals for the First Circuit, February
3, 1983.
Supreme Court of the United States, December 4, 1978.
12. Published Writings: List the titles, publishers, and dates of
books, articles, reports, or other published material you have
written or edited. Please supply one copy of all published
material not readily available to the Committee. Also, please
supply a copy of all speeches by you on issues involving
constitutional law or legal policy. If there were press
reports about the speech, and they are readily available to
you, please supply them.
I. Books.
1. In 1986, I co-authored a two-volume treatise on grand
jury law with Professor Sara Sun Beale of the Duke University
School of Law. The treatise is entitled Grand Jury Law and
Practice. Professor Beale and I prepare annual supplements to the
treatise. I wrote chapters 5, 7, 8, 9, and 11 of the treatise. In
addition, I wrote a substantial portion of chapter 6.
2. I was a contributing author for Master Advocate's
Handbook . published by the National Institute for Trial Advocacy in
1986. I wrote chapter 16 of that book, which is devoted to a
discussion of appellate practice. My co-author on that chapter,
Judge William Bauer of the United States Court of Appeals for the
Seventh Circuit, made a number of helpful suggestions, but the
chapter otherwise represents my work. Master Advocate's Handbook
may not be readily available through most law libraries, so I have
included a copy of chapter 16 of that book with this questionnaire.
II. Articles.
1. A Matter of Wooden Logic: Labor Law Preemption and
Individual Rights, 51 Texas L. Rev. 1037 (1974).
III. Speeches.
Once or twice a year, I have spoken to various groups on
subjects such as appellate advocacy, Supreme Court practice, and
180
recent developments in the law. In addition, following the death
of Justice Thurgood Marshall, I delivered two tributes to his
memory. I do not speak from a text, and I therefore do not have
copies or notes relating to any address I have delivered. I am not
aware of any press reports on any of my addresses.
13. Health; What is the present state of your health? List the
date of your last physical examination.
Excellent. Last physical examination: April 29, 1994.
14. Judicial Office; State (chronologically) any judicial offices
you have held, whether such position was elected or appointed,
and a description of the jurisdiction of each such court.
None.
15. Citations; If you are or have been a judge, provide:
(1) citations for the ten most significant opinions you have
written; (2) a short summary of and citations for all appel-
late opinions where your decisions were reversed or where your
judgment was affirmed with significant criticism of your
substantive or procedural rulings; and (3) citations for
significant opinions on federal or state constitutional
issues, together with the citation to appellate court rulings
on such opinions. If any of the opinions listed were not
officially reported, please provide copies of the opinions.
N/A
16. Public Office: State (chronologically) any public offices you
have held, other than judicial offices, including the terms of
service and whether such positions were elected or appointed.
State (chronologically) any unsuccessful candidacies for
elective public office.
6/73 - 6/74 Law Clerk to Judge Henry J. Friendly,
United States Court of Appeals for the
Second Circuit.
Appointed.
6/74 - 8/75 Law Clerk to Justice Thurgood Marshall,
Supreme Court of the United States.
Appointed.
1/78 - 5/79 Assistant to the Solicitor General,
Department of Justice.
181
5/79 - 3/82
3/82 - 4/86
4/86 - 3/94
3/94 - Present
Chief, Appellate Section, Criminal
Division, Department of Justice.
Appointed.
Special Counsel to the Organized Crime
and Racketeering Section, Criminal
Division, Department of Justice.
Appointed.
Deputy Solicitor General,
Department of Justice.
Appointed.
Acting Associate Attorney General
and Deputy Associate Attorney General,
Department of Justice.
Appointed.
17. Legal Career;
a. Describe chronologically your law practice and experience
after graduation from law school including:
1. whether you served as clerk to a judge, and if so, the
name of the judge, the court, and the dates of the period
you were a clerk;
From June 1973 until June 1974, I served as law clerk to Judge
Henry J. Friendly of the United States Court of Appeals for the
Second Circuit. During the last portion of the year of ray
clerkship, Judge Friendly also served as the Presiding Judge of the
Special Railroad Reorganization Court.
From June 1974 until August 1975, I served as law clerk to
Associate Justice Thurgood Marshall of the Supreme Court of the
United States.
2. whether you practiced alone, and if so, the
addresses and the dates.
I never practiced alone.
3. the dates, names and addresses of law firms or
offices, companies or governmental agencies
with which you have been connected, and the
nature of your connection with each;
After my clerkship with Justice Marshall, I became an
associate with the law firm of Miller, Cassidy, Larroca & Lewin,
2555 M St., N.W., Washington, D.C., 20036. I was employed in that
capacity from September 1975 until January 1978.
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8
I left Miller, Cassidy, Larroca & Lewin in January 1978 to
join the Office of the Solicitor General, Department of Justice,
10th and Pennsylvania, N.W., Washington, D.C. 20530, where I served
as an Assistant to the Solicitor General from January 1978 until
May 1979.
In May 1979, I was appointed Chief of the Appellate Section of
the Criminal Division of the Department of Justice and left the
Solicitor General's Office. I served in that position until March
1982.
In March 1982, I was appointed Special Counsel to the
Organized Crime and Racketeering Section of the Criminal Division
of the Department of Justice. I served in that capacity until
March 1986.
In April 1986, I was appointed Deputy Solicitor General,
Office of the Solicitor General, Department of Justice. I was
assigned reviewing responsibility for all criminal cases handled by
the Solicitor General's Office and some civil cases as well. I
served as Acting Solicitor General during the period between the
resignation of Charles Fried as Solicitor General in January 1989
and the appointment of Kenneth W. Starr as Solicitor General in May
1989. I also served as Acting Solicitor General during the period
between the resignation of Kenneth W. Starr as Solicitor General in
January 1993 and the appointment of Drew S. Days, III, as Solicitor
General in May 1993. I have also served as Acting Solicitor
General in various cases in which the Solicitor General has been
recused. I served in the Solicitor General's office until March
1994.
In March 1994, I was appointed Deputy Associate Attorney
General and was designated Acting Associate Attorney General
following the resignation of Webster Hubbell as Associate Attorney
General. I have continued in that position until the present.
b.
1. What has been the general character of your prac-
tice, dividing it into periods with dates, if its
character has changed over the years?
1. Since March 1994, I have served as Deputy Associate
Attorney General in the Department of Justice. During that period,
I have been designated as Acting Associate Attorney General. I was
appointed to that position following the resignation of Webster
Hubbell, who previously served as Associate Attorney General. My
duties as Acting Associate Attorney General include supervision of
the following litigating divisions of the Department of Justice:
Antitrust Division, Civil Division, Civil Rights Division,
Environment and Natural Resources Division, and Tax Division. The
Associate Attorney General's office also has supervisory responsi-
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9
bility over the following components of the Department of Justice:
the Immigration and Naturalization Service, the Executive Office
for Immigration Review, the Executive Office for United States
Trustees, the Foreign Claims Settlement Commission, the Office of
Information and Privacy, and the Community Relations Service. My
duties in supervising these components involve both administrative
responsibilities and involvement in significant substantive
matters. I am also responsible for advising the Attorney General
and the Deputy Attorney General about issues arising from the
activities of these components.
2. Between April 1986 and March 1994, I served as Deputy
Solicitor General. During that time, my practice was principally
before the Supreme Court. My work consisted mainly of arguing
cases before the Supreme Court, drafting and reviewing briefs for
filing in the Supreme Court, and supervising the work of other
attorneys in the Solicitor General's office. My main area of
substantive concentration was criminal law; I was responsible for
processing most of the criminal cases that the Solicitor General's
Office handled. In addition, I was responsible for several cases
in the areas of civil rights and First Amendment law, and I had
supervisory responsibility for a variety of civil cases in fields
such as separation of powers, Bivens suits, and appeals from agency
actions.
In addition to my work preparing, reviewing, and supervising
briefs and arguments before the Supreme Court, I was responsible
for making recommendations to the Solicitor General regarding
further review of adverse decisions in district courts and courts
of appeals. I also regularly consulted with trial attorneys from
United States Attorneys' offices and from the Divisions of the
Department of Justice who sought advice regarding problems arising
in district court litigation.
For several months in 1989 and several months in 1993, I
served as Acting Solicitor General pending the nomination and
confirmation of a new Solicitor. General. In that position, I
functioned as the head of the office and was responsible for all
the filings in the Supreme Court and all the decisions on recommen-
dations for further review in the lower courts. The supervisory
responsibility in that position extended to both civil and criminal
cases, and included matters dealing with almost every aspect of
federal constitutional, statutory, and common law.
3. Between March of .1982 and April of 1986, I served as
Special Counsel to the Organized Crime and Racketeering Section of
the Criminal Division of the Department of Justice. My responsi-
bilities in that position involved litigation in district and
appellate courts in cases of particular importance to the Depart-
ment's organized crime program. During that period and during the
prior three years when I served as Chief of the Appellate Section
of the Criminal Division, I briefed and argued approximately 100
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10
cases in the courts of appeals. In the course of arguing those
cases, I appeared in each of the regional courts of appeals. Most
of the cases I handled were criminal cases, although a few were
civil. I also appeared in district courts, usually to argue
pretrial or post-trial motions. The district courts in which I
appeared were the District of New Jersey, the Eastern District of
Pennsylvania, the District of Maryland, the Northern District of
Ohio, and the District of Nevada. In addition, I filed motions and
other pleadings in other district courts. Finally, one of my
principal functions as Special Counsel to the Organized Crime and
Racketeering Section was to assist trial attorneys in the field
offices of the Section with legal problems that arose in the course
of their district court litigation.
4. From May of 1979 to March of 1982, I served as Chief of
the Appellate Section of the Criminal Division of the Department of
Justice. As Chief of the Appellate Section, I was responsible for
supervising up to 40 attorneys who briefed and argued cases in each
of the federal courts of appeals and prepared draft briefs in
Supreme Court cases for the Office of the Solicitor General. The
Appellate Section also made recommendations under my supervision to
the Solicitor General regarding whether appeals should be taken
from decisions in district courts and courts of appeals that were
adverse to the government. I personally briefed and argued a
number of appeals and supervised other attorneys in handling
appellate matters. In addition, I occasionally appeared in
district courts and regularly advised attorneys in the field with
respect to district court litigation.
5. During my first tour of duty in the Solicitor General's
Office, I served as an Assistant to the Solicitor General from
January 1978 through May 1979. My responsibilities included
preparing briefs and presenting arguments to the Supreme Court in
a variety of cases, and making recommendations to the Solicitor
General regarding whether further review should be sought in cases
in which the government had suffered losses in the lower courts.
My principal area of concentration during that period was employ-
ment discrimination law. I also handled general civil matters,
administrative law cases, natural resources cases, and criminal
matters.
6. During the period from September 1975 through January
1978, I was an associate with the firm of Miller, Cassidy, Larroca
& Lewin, where I was engaged in litigation of civil and criminal
matters, mostly in federal district courts. I participated as
second-chair in three trials, two of which lasted approximately one
week, and one of which lasted several months. Two of the three
trials (including the several-month trial) were jury trials; the
third was tried to the court.
In addition to preparing for and participating in those
trials, I was involved in discovery and pretrial litigation in a
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ii
number of cases, which required me to file pleadings and make oral
presentations in several trial courts, both in the federal and
state systems. Those cases involved antitrust law, contract
disputes, federal tax claims, natural resources issues, and state
criminal charges.
7. Prior to entering private practice, I was privileged to
serve a one-year term as a law clerk to each of two outstanding
federal judges, Judge Henry J. Friendly of the Second Circuit and
Justice Thurgood Marshall of the Supreme Court. Both years were
intensive learning experiences from which I feel that I gained much
more than I contributed.
2. Describe your typical clients, and mention the
areas, if any, in which you have specialized.
Since I joined the Department of Justice in 1978, my sole
client has been the United States, its agencies, and its officers.
With minor exceptions, the Office of the Solicitor General is the
exclusive representative of the federal government before the
Supreme Court. I have represented a variety of departments,
agencies, and other entities within the federal government. In
addition to appearing on behalf of the United States generally, I
have represented the Bureau of Prisons, the Immigration and
Naturalization Service, and Cabinet departments. I have also
worked on matters for several independent agencies, including the
Securities and Exchange Commission, the National Labor Relations
Board, and the Equal Employment Opportunity Commission.
c.
1. Did you appear in court regularly, occasionally or not at
all? If the frequency of your appearances in court has
varied during this period, describe each such variance,
giving the dates thereof.
I have appeared in court regularly during my legal career,
mostly in appellate matters. I have argued before the United
States Supreme Court on 31 occasions and have "second-chaired"
arguments before the Supreme Court on more than 100 occasions. I
have argued a total of more than 100 cases in various federal
courts of appeals. In addition, I have appeared on occasion in
various federal district courts and a few times in the courts of
other jurisdictions.
During the past eight years (1986-present) , I have argued in
court an average of about four times each year. For the eight
years before that (1978-1986) , my court appearances were more
frequent: during that period, I argued approximately 15 times each
year, mainly in federal courts of appeals, but occasionally in the
186
12
Supreme Court and in district courts. During the period that I was
in private practice (1975-1978), I participated in four trials
ranging in length from one day to eight weeks, and I appeared in
court on perhaps 10 other occasions. During the period that I
served as a law clerk (1973-1975), I was present in court on many
occasions, but of course did not appear in court as counsel for a
party .
2. What percentage of these appearances was in
1) Federal courts.
2) State courts of record.
3) Other courts.
Most of my appearances in court have been in federal courts.
I have appeared in state and local courts on only three occasions,
all while I was in private practice. I would therefore estimate
that my appearances in federal court constitute approximately 99%
of my appearances in court.
3. What percentage of your litigation was
1) Civil.
2) Criminal.
The volume of my civil litigation has varied over time, but
altogether I estimate that my practice has been approximately 75
percent criminal and 25 percent civil.
During the period that I was in private practice, I spent
approximately 70 percent of my time on civil litigation and 30
percent on criminal litigation. During the period that I was first
in the Office of the Solicitor General (1978-1979), I spent
approximately 70 percent of my time on civil cases and 30 percent
on criminal cases. During the period that I was in the Criminal
Division at the Department of Justice (1979-1986), I spent
approximately 90 percent of my time on criminal cases and 10
percent of my time on civil cases.
4. State the number of cases in courts of record
you tried to verdict or judgment (rather than
settled) , indicating whether you were sole
counsel, chief counsel, or associate counsel.
I have tried a total of four cases to verdict or judgment. I
was associate counsel in each one. I have participated in other
cases at the trial level, although not as trial counsel throughout
the proceeding. For example, I participated in the prosecution of
Manuel Noriega by briefing and arguing the principal pretrial
motions in that case challenging the jurisdiction of the district
court and by consulting with the trial counsel prior to and during
the trial. In addition, throughout my tenure in the Department I
187
13
have regularly consulted with government trial counsel during trial
proceedings and have actively participated in addressing particular
issues that have arisen during trial.
5. What percentage of these trials was
1) Jury.
2) Non-jury.
Of the four cases that I tried to verdict or judgment, two
were jury trials (50%) and two were non-jury trials (50%) .
18. Describe the ten most significant litigated matters which you
personally handled. Give the citations, if the cases were
reported, and the docket number and date if unreported. Give
a capsule summary of the substance of each case. Identify the
party or parties whom you represented; describe in detail the
nature of your participation in the litigation and the final
disposition of the case. Also state as to each case
(a) the dates of representation;
(b) the name of the court and the name of the judge
before whom the case was litigated; and
(c) the individual name, address and telephone numbers of
co-counsel and of principal counsel for each of the other
parties.
1. On February 28, 1994, I argued for the government in the
Supreme Court in Custis v. United States, No. 92-5209 (decided May
23, 1994), a case that decided an important constitutional question
regarding the law of criminal sentencing. I also participated in
the preparation of the government's brief in that case.
The Custis case raised the question whether, in a case in
which the defendant is subjected to an enhanced sentence based on
prior convictions, the defendant must be allowed to mount a
collateral attack on the validity of the convictions that are used
to enhance his sentence. Because sentence enhancements based on
prior convictions are extremely common in both state and federal
law, the question whether prior convictions must be subject to
collateral challenge at the subsequent sentencing proceeding is one
of great practical importance.
We argued in the Custis case that a prior conviction, like any
other sentencing factor, may be considered in sentencing unless its
use would be arbitrary; its use would be arbitrary, we argued, only
if the prior conviction were rendered infirm by some grave
structural flaw, such as the deprivation of the right to counsel,
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14
that rendered the prior conviction void. Except in settings such
as that, we contended, the Constitution does not require that prior
convictions be subject to challenge on various statutory and
constitutional grounds before they can be used at sentencing. If
such a rule were adopted in sentencing proceedings, we argued, it
would logically have to apply as well in other settings where prior
convictions are used, such as to impeach a testifying defendant.
The Supreme Court agreed with the government's argument that
the Constitution does not require that defendants be allowed to
mount collateral attacks on prior convictions that are used for
sentence enhancement purposes, except in limited circumstances.
The Court held that unless a defendant can show that he or she was
denied counsel altogether, the defendant may not raise a constitu-
tional objection to the prior convictions referred to at sentenc-
ing, if those prior convictions had not previously been held
invalid.
My co-counsel in this case was John F. Manning, Esq. ,
Assistant to the Solicitor General, Department of Justice,
Washington, D.C 20530, (202) 514-2161. Principal counsel for the
petitioner was Assistant Public Defender Mary M. French, Esq.,
Equitable Bank Center, Tower II, Suite 401, 100 S. Charles Street,
Baltimore, Md. 21201.
2. On February 24, 1993, as Acting Solicitor General, I
argued for the government in the Supreme Court in Zobrest v.
Catalina Foothills School District. 113 S. Ct. 2462 (1993), a
significant case in the Supreme Court's line of decisions inter-
preting the Establishment of Religion Clause of the First Amend-
ment.
Plaintiff James Zobrest was a deaf child who wished to attend
a Roman Catholic high school while obtaining public funding to pay
for a sign-language interpreter to assist him in his schooling.
The Individuals with Disabilities Education Act (IDEA) requires
public school districts to make accommodations for students with
disabilities, including students who choose to attend private
schools. The question in this case was whether the Establishment
Clause of the First Amendment barred the defendant school district
from providing Zobrest with a sign-language interpreter. The
district court and the court of appeals concluded that for the
school district to spend public funds to provide an interpreter for
Zobrest would violate the Establishment Clause because it would
have the effect of advancing religion and because it would result
in a symbolic union of government and religion. The Supreme Court
reversed by a 5-4 vote. The majority held that the use of public
funds to aid Zobrest in this case was permissible, because it was
part of a general governmental program that distributes benefits
neutrally to any qualifying disabled child, without regard to
whether he attends a religious or non-sectarian school. Making an
interpreter available has a neutral financial impact on both the
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15
school and the parents, since the ava ..ability of the interpreter
does not provide financial support to the religious school, and
since the interpreter would be available in a public or non-
sectarian private school. The dissenting justices concluded that
providing an interpreter in a religious school violated the
Establishment Clause, because the result was that the secular and
sectarian were "inextricably intertwined," and because providing
governmental assistance to the educational function of the
religious school necessarily entailed governmental participation in
the school's inculcation of religion.
This case is significant because it resolved a critical
question about whether the federal statute mandating educational
assistance for disabled students can apply to assistance given to
students who attend religious schools. It is also significant
because it indicates that a program of educational assistance will
not violate the Establishment Clause as long as (1) the assistance
is provided directly to the student rather than to the school, (2)
the program in question is a general welfare program that is
neutral with respect to religion, and (3) the public funding
provides no incentive for students to undertake sectarian educa-
tion. The Court rejected the argument that the presence of the
sign-language interpreter on the premises of the school was enough
to render the public aid impermissible under the Establishment
Clause.
My co-counsel in the case was Assistant to the Solicitor
General Ronald J. Mann, Department of Justice, Washington, D.C.
20530, (202) 514-1030. Counsel for petitioners was William Bentley
Ball of Ball, Skelly, Murren & Connell, 511 North Second Street,
Harrisburg, Pa. 17108, (717) 232-8731. Principal counsel for
respondents was John C. Richardson of DeConcini McDonald Brammer
Yetwin & Lacy, P.C., 2525 East Broadway Blvd, Suite 200, Tucson,
Arizona 85716, (602) 322-5000.
3. In 1993, I argued before the Supreme Court a complex
double jeopardy case entitled United States v. Dixon and Foster.
113 S. Ct. 2849 (1993). I also participated in the preparation of
the government's petition for certiorari and brief on the merits in
that case.
Dixon involved two consolidated lower court cases. In the
first, Dixon was first prosecuted for criminal contempt and was
then prosecuted for a substantive criminal offense. The contempt
prosecution was brought by the United States for violation of a
bail order directing Dixon not to commit any crimes while he was on
conditional release for another offense. The substantive prosecu-
tion was for the same drug offense that was responsible for
triggering the contempt prosecution.
The second case at issue in Dixon was the Foster case, which
involved a contempt proceeding brought by Foster's estranged wife,
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16
who had obtained a civil protection order against F«ter, directing
him to stay away from her and not to assault her. The contempt
proceeding was based on Foster's assaults on his wife. The
government subseguently prosecuted Foster for assault and attempted
murder based on the same conduct.
The Supreme Court first held that the Double Jeopardy Clause
applies in the same fashion to nonsummary contempt proceedings as
it does to cases of any other type. The Court then held that the
test the Court had adopted a few years earlier in Grady v. Corbin.
495 U.S. 508 (1990), to evaluate double jeopardy claims based on
successive prosecutions, was unworkable and should be abandoned.
The Court therefore overruled its decision in Grady and held that
the traditional "elements" test governed the double jeopardy issues
in this case (i.e. . that each provision under which the defendant
was prosecuted required proof of an element not required by the
other charge) . By virtue of its overruling of Grady and its
adoption of the more traditional interpretation of the Double
Jeopardy Clause, the Dixon case has become the leading case on the
law of double jeopardy as applied in the context of successive
prosecutions.
My co-counsel was Assistant to the Solicitor General James A.
Feldman, Department of Justice, Washington, D.C. 20530, (202) 514-
4277. Principal counsel for the respondents was James W. Klein of
the Public Defender Service, 451 Indiana Ave., N.W., Washington,
D.C. 20001, (202) 628-1200.
4. As Acting Solicitor General in 1989, I worked on the
briefs and argued for the government in the Supreme Court in two
consolidated cases raising the question of the constitutionality of
statutes providing for the criminal forfeiture of funds that
defendants sought to use to pay their attorneys' fees. The cases
are styled United States v. Monsanto. 491 U.S. 600 (1989), and
Caplin & Drvsdale v. United States. 491 U.S. 617 (1989). The two
cases were consolidated for argument and were argued back-to-back
on March 21, 1989.
I argued before the Court that a criminal defendant does not
have a constitutional right to use for his own purposes funds that
are the proceeds of a crime, even if he wishes to use those funds
to pay his lawyer. In addition, I argued that the criminal
forfeiture provisions of the federal racketeering and narcotics
statutes make the forfeiture of the proceeds of racketeering and
narcotics violations mandatory, and do not give courts discretion
to decline to order forfeiture if the funds are to be used for a
purpose such as paying attorneys' fees.
The Supreme Court agreed with our submission, although by a
narrow margin, ruling in favor of the government by a 5-4 vote in
each case. Besides upholding the constitutionality of the federal
forfeiture statutes, the two cases resolved important questions
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regarding the proper construction of those statutes, and they
disposed of the broad Sixth Amendment challenge to the forfeiture
of assets in the hands of a criminal defendant that the defendant
wishes to use to pay his attorney. I argued that while the Sixth
Amendment does not bar forfeiture of such funds altogether, it is
open to defendants and their attorneys to argue that the procedures
used in particular cases would violate statutory or constitutional
requirements by depriving a defendant of funds with which to retain
an attorney without an adequate showing that the funds were the
proceeds of a crime. The Court agreed and left for future
resolution claims that, in particular cases, prosecutors have
abused their powers under the forfeiture statutes.
My co-counsel in both cases was Deputy Solicitor General Edwin
S. Kneedler, Department of Justice, Washington, D.C. 20530, (202)
514-3261. Principal counsel for the opposing parties were Edward
M. Chikofsky, Adjunct Professor, Washington College of Law,
American University, 4400 Massachusetts Ave., N.W., Washington,
D.C. 20016, (202) 885-1517, and Peter Van N. Lockwood of Caplin &
Drysdale, Chartered, One Thomas Circle, N.W., Washington, D.C.
20005, (202) 862-5000.
5. In 1991, I worked on the brief and argued in the Supreme
Court in Evans v. United States. 112 S. Ct. 1881 (1992), which
raised a difficult question under the federal extortion statute, 18
U.S.C. 1951. The issue in the case was whether extortion, when
committed by a public official, requires proof that the official
initiated or induced the making of a payment by threatening to take
adverse official action, or whether it is enough that the official
accepted money to which he knew he was not entitled. Several
courts of appeals had held that some form of inducement by the
public official was necessary to establish "extortion under color
of official right" under the statute. Our position was that the
statute is violated if the public official accepted a payoff,
knowing that he was not entitled to the money, in return for some
official act.
In the course of drafting the brief and preparing the oral
argument in this case, I did extensive research on the common law
origins of the crime of extortion and well as research in the
National Archives on the origins of the federal anti-racketeering
legislation in the early 1930' s that ultimately led to the
enactment of the federal extortion statute. The historical
materials were of interest to the Court and turned out to be the
focus of much of the Court's active questioning during the oral
argument. The case was argued on December 9, 1991.
In a case that produced four separate opinions, a bare
majority of the Justices agreed with our position and affirmed the
defendant's conviction. The case is significant because it permits
federal prosecution of corrupt public officials even when those
officials have not actively solicited payments or threatened to
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harm those who do not make the payments. Because payoffs to public
officials are often made in settings in which demands for money and
threats of adverse action are communicated in subtle fashion or in
guarded terms, the decision in the Evans case makes possible
federal prosecution in a large number of public corruption cases
that would otherwise be beyond the reach of federal law.
My co-counsel was Christopher J. Wright, then Assistant to the
Solicitor General, now Deputy General Counsel, Federal Communica-
tions Commission, 1919 M Street, N.W., Washington, D.C. 20554,
(202) 632-7020. Counsel for the opposing party was Michael Abbott,
100 Peachtree Street, N.W., Atlanta, Georgia 30303, (404) 525-1960.
6. In 1990, I was responsible for briefing and presenting
oral argument before the Supreme Court in United States v. Oieda
Rios. 495 U.S. 257 (1990) . That case involved an important
prosecution of members of a Puerto Rican nationalist group who were
charged with committing a multi-million dollar robbery from a Wells
Fargo truck in Connecticut. The case turned on the construction of
a technical, but important, provision of the federal wiretap
statute — the so-called "sealing" provision that reguires
prosecutors who are conducting a court-authorized wiretap to submit
the products of the wiretap to the authorizing judge for sealing
immediately upon the expiration of the period of the wiretap order
or extensions of that order. In the Oieda Rios case, the prosecu-
tor submitted the wiretap tapes for sealing at the end of the
investigation, rather than at the expiration of the authorization
order for each wiretap. In the briefs and at oral argument, I
contended (1) that the suppression remedy in the federal wiretap
statute applies only to failures to seal the products of the
wiretaps, not to delays in sealing; (2) that the reguirement of the
sealing provision that a "satisfactory explanation" be given for
any delay in sealing is met if the explanation is accurate, without
regard to whether the reason for the delay constitutes a valid
legal excuse; and (3) that the government's explanation in this
case was "satisfactory," since the prosecutor had reasonably
misinterpreted the sealing reguirement when he failed to have the
tapes sealed promptly after the termination of each order. The
Supreme Court rejected the first two arguments, but it held that
the third had legal merit, and that the government was entitled on
remand to show that the explanation for the delay in sealing was a
good one.
Because of the importance of this prosecution, and because the
legal problem with the admission of the wiretap evidence was
evident from very early on in the case, I became involved in
planning the government's strategy several years before the Supreme
Court argument. Because Second Circuit law on the wiretap issue
was unfavorable, we anticipated from the outset that we might well
have to go to the Supreme Court for relief in this case, so our
efforts focused on making a record in the district court that would
put us in the best position before the Supreme Court. I therefore
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19
worked with the prosecutors on the wiretap issue when the case was
before the district court and consulted on the presentation and
briefing of the issue both in the district court and in the court
of appeals. When we were unsuccessful in the lower courts, I
worked extensively on both the petition for a writ of certiorari
and the government's brief on the merits in the case. Although the
Supreme Court accepted only one of our arguments in the case, the
result of its ruling was that the evidence in question was
ultimately held to be admissible, and the case was resolved
favorably for the government by guilty pleas from the defendants.
My co-counsel in the case were Assistant to the Solicitor
General Harriet S. Shapiro, Department of Justice, Washington, D.C.
20530, (202) 514-4281, and Patty Merkamp Stemler, Chief, Appellate
Section, Criminal Division, Department of Justice, Washington, D.C.
20530, (202) 514-2611. Principal counsel for the respondents was
Richard A. Reeve, Assistant Federal Public Defender, 234 Church
Street, Room 1001, New Haven, Conn. 06510, (203) 773-2148. The
Assistant United States Attorney with whom I worked most closely
throughout the pendency of this case in the district court, the
court of appeals, and the Supreme Court was John A. Danaher, III,
Office of the United States Attorney, 450 Main Street, Hartford,
Conn. 06103, (203) 722-3270.
7. On January 7, 1991, I argued for the United States as
amicus curiae in a civil case in which we supported a prisoner who
was suing state prison officials for violating the Cruel and
Unusual Punishments Clause of the Eighth Amendment because of the
conditions of the prisoner's confinement. The case is Wilson v.
Seiter. Ill S. Ct. 2321 (1991).
The lower court in the Wilson case had held that a prisoner
could not establish a violation of the Cruel and Unusual Punish-
ments Clause with respect to prison conditions unless he or she
could show that the prison officials were guilty of malicious
cruelty in establishing or tolerating inhumane conditions. In our
brief and at oral argument, we took the position that in a prison
conditions suit, a prisoner need not prove any culpable state of
mind on the part of the prison officials, as long as the prisoner
can show that the conditions were inhumane. As a backup argument,
we contended that a prisoner should have to establish nothing more
than that the officials were deliberately indifferent to the
gravely substandard conditions in the prison.
Only four justices accepted our principal submission, but the
majority held that some culpable state of mind on the part of the
prison officials was necessary to establish a violation of the
Eighth Amendment. The majority did not agree with the lower court
or the State, however, that proof of malicious cruelty by the
prison officials was required in order to establish a violation.
The Court's decision, while not going as far as we urged, nonethe-
less established a minimum level of acceptable conduct by prison
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20
officials below which prisoners would be entitled to relief in
civil suits over prison conditions. Most importantly, the court
rejected the position that, in order to prevail in a prison
conditions case, the prisoner must show that the prison officials
acted with malicious cruelty. The Wilson case has been widely
relied upon since it was decided, and is now regarded as one of the
leading cases in the field of prison condition litigation.
My co-counsel in the case were Deputy Solicitor General David
L. Shapiro, now at Harvard Law School, Cambridge, Mass. 02138,
(617) 495-4618, and Assistant to the Solicitor General Michael R.
Dreeben, Department of Justice, Washington, D.C. 20530, (202) 514-
4285. Principal counsel from the ACLU National Prison Project was
Elizabeth Alexander, 1875 Connecticut Avenue, N.W., Suite 410,
Washington, D.C. 20009, (202) 234-4830. Opposing counsel was Rita
S. Eppler, Chief, Federal Litigation Section, Assistant Attorney
General, State Office Tower, 26th Floor, 30 East Broad Street,
Columbus, Ohio 43266, (614) 466-5414.
8. In 1989, I represented the Attorney General and other
federal officials who were sued in their official capacities in a
civil action brought by a class of federal prisoners and certain
book and magazine publishers. I participated in that case,
Thornburah v. Abbott . 490 U.S. 401 (1989), from the time of the
adverse court of appeals decision through the filing of a petition
for a writ of certiorari, the briefing of the case, and the oral
argument .
The Abbott plaintiffs objected to the Bureau of Prisons'
regulations regarding the receipt by federal prisoners of publica-
tions from outside the prison. The Bureau of Prisons' policy
authorized wardens to reject an incoming publication if it was
found "to be detrimental to the security, good order, or discipline
of the institution or if it might facilitate criminal activity."
The plaintiffs filed suit challenging the regulation on its face
and as applied to a number of publications. The district court
upheld the policy, but the court of appeals reversed, holding that
under the standard set forth in Procunier v. Martinez. 416 U.S. 396
(1974) , the regulations violated the First Amendment.
The Supreme Court reversed the court of appeals, holding that
the regulations were valid under the applicable standard of
reasonableness. To the extent that Martinez could be read to
require strict scrutiny of regulations restricting the content of
incoming mail from nonprisoners, the Court overruled Martinez. The
Court held that the broad discretion given to prison wardens with
regard to matters of security justified the approach taken in the
regulations, which were neutral with respect to content, but which
gave wardens considerable discretion to exclude materials that they
considered threatening to prison security and order.
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21
The Abbott case is significant because it established that
prison officials have discretion to screen First Amendment
protected materials coming into the prison for potential security
risks that may not be obvious (i.e. . the publications that may be
excluded are not limited to materials such as pamphlets that offer
instructions on how to manufacture weapons from items that may be
found in the prison environment) . The case has provided guidance
to the Bureau of Prisons and state prison officials in formulating
policies regarding the rights of prisoners not only with respect to
protected First Amendment materials, but also with regard to other
prison activities.
My co-counsel in the Abbott case was Assistant to the
Solicitor General Michael R. Dreeben, Department of Justice,
Washington, D.C. 20530, (202) 514-4285. Principal counsel for
respondent was Steven Ney, 401 N. Williamsburg Drive, Silver
Spring, Md. 20901, (301) 681-5547.
9. In 1983, I briefed and argued United States v. Williams.
737 F.2d 594 (7th Cir. 1984), cert, denied, 470 U.S. 1003 and 1354
(1985), an appeal from the convictions of Teamsters Union President
Roy L. Williams and others for attempting to bribe U.S. Senator
Howard Cannon. The prosecution, which was brought by the Organized
Crime and Racketeering Section's Chicago Strike Force, was one of
the most important of the Section's labor racketeering cases. I
spent substantial time on this case starting prior to the indict-
ment, when I consulted with the attorneys working on the investiga-
tion. During the trial, I consulted with the trial attorneys on a
number of occasions. Following the successful completion of the
trial, I handled the briefing and argument of the appeal before the
United States Court of Appeals for the Seventh Circuit, which
affirmed the convictions in all respects.
The primary significance of the Williams case was that it
resulted in the conviction of the president of a major union for
engaging in corrupt efforts to bribe a United States Senator.
Besides removing a corrupt chief executive from the Teamsters Union
and two corrupt trustees from the Teamsters* Central States Pension
Fund, the prosecution resulted in the conviction of two major
organized crime figures in Chicago, Allen Dorfman and Joseph
Lombardo, for facilitating the bribery attempt through their
influence with the Pension Fund and other corrupt individuals in
Las Vegas and Chicago. In addition, the appeal was sharply
contested and raised several novel legal issues that were resolved
in the government's favor.
The principal issue on appeal was the admissibility of
conversations intercepted through electronic surveillance. The
defendants claimed that the government failed adeguately to
minimize the conversations overheard during the surveillance
period, that in seeking extensions of the initial wiretap orders
the government failed to comply with its statutory obligations to
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22
set forth the results of the interception or to explain the failure
to obtain results, and that the government secured the extension
orders that produced most of the evidence in the case through
deliberate or reckless misrepresentations to the authorizing court.
The appeal also raised a number of novel evidentiary questions,
including a challenge to the district court's handling of an
anonymous extrinsic contact with several members of the jury during
the trial. Preparing the brief and preparing for oral argument
required me to familiarize myself with the very extensive district
court record in the case, which included not only a lengthy trial,
but also substantial pretrial and post-trial proceedings. Although
I had assistance in drafting minor portions of the brief, the work
in preparing the brief was mostly my own. The panel of the Seventh
Circuit Court of Appeals consisted of Circuit Judges Eschbach,
Posner, and Coffey.
Assisting me in the preparation of the brief was Alexander S.
White, Organized Crime and Racketeering Section, Criminal Division,
Department of Justice, Washington, D.C. 20530, (202) 514-3505. I
argued the case alone. Principal counsel for the defendants were
Nathan Lewin of Miller, Cassidy, Larroca & Lewin, 2555 M Street,
N.W., Washington, D.C. 20037, (202) 293-6400; William G. Hundley,
1333 New Hampshire Ave., N.W. , Washington, D.C. 20036, (202) 887-
4325; Robert M. Stephenson, 33 North Dearborn Street, Chicago,
Illinois 60602, (312) 263-0345; Judith A. Halprin, 29 East Madison
St., Chicago, Illinois 60602, (312) 726-5190; Frank Oliver, 777
N.E. 79th St., Suite 104, Miami, Florida 33138, (305) 758-1893; and
William R. Theis, 105 West Madison Street, Chicago, Illinois 60602,
(312) 861-2170.
10. From 1980 until 1982, I participated in the district
court and appellate court proceedings in United States v. General
Electric Co. , Criminal No. 80-320 (D.N.J. ), a major fraud prosecu-
tion against the General Electric Company and several related
companies and individuals. The prosecution arose from the payment
by company officials of a $1. 25 million bribe to a Puerto Rican
official to ensure that General Electric would obtain a contract
for building a power plant in Puerto Rico. The trial resulted in
convictions, but the convictions were reversed on appeal.
My participation in this case began shortly before the
indictment was returned. Throughout the pretrial period, I worked
closely with the trial team on pretrial issues. I was principally
responsible for preparing the consolidated government responses to
the defendants' pretrial motions. I then personally argued the
principal motions in , the district court. Although I did not
participate in the trial itself, I consulted regularly with the
trial team and was familiar with the proceedings as the trial
unfolded.
On appeal, I prepared the brief for the United States with
another lawyer, and I argued the case myself. The argument was a
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23
difficult one, and the many issues that were raise on appeal made
it necessary for me to be familiar with the long district court
record in the case. Although the convictions of the principal
defendants were reversed, see United States v. Steele. 685 F.2d 793
(3d Cir.), cert, denied, 459 U.S. 908 (1982), the case is signifi-
cant because of its precedential effect on the issue of the
construction of statutes of limitation in criminal cases, and
because of the court's treatment of the issue of withdrawal from a
criminal conspiracy. The case is also significant because it
involved a very large bribe paid by high officials of a leading
American company to obtain a large public contract.
The district court judge in this case was Hon. Anne E.
Thompson of the United States District Court for the District of
New Jersey; the panel of the Third Circuit Court of Appeals
consisted of Circuit Judges Aldisert, Weis, and Becker.
My principal co-counsel on the brief was Peter D. Isakoff ,
1615 L Street, N.W., Washington, D.C. 20036, (202) 682-7000. The
principal trial attorney in the case, with whom I worked directly
at the trial level, was Joseph P. Covington, 815 Connecticut Ave.,
N.W., Washington, D.C. 20006, (202) 828-5389. Opposing counsel on
the appeal were Henry S. Ruth of Saul, Ewing, Remick & Saul, 3800
Centre Square West, Philadelphia, Pa. 19102, (215) 972-7777;
Lawrence Iason, 565 Fifth Ave., New York, N.Y. 10017, (212) 856-
9600; William J. Rodgers of Collier, Shannon & Scott, 3050 K
Street, N.W., Suite 400, Washington, D.C. 20007, (202) 342-8400;
Donald Horowitz, 24 Bergen Street, Hackensack, N.J. 07601, (201)
343-0100; Benjamin Lewis of Lapatin, Lewis, Green, Kitzes &
Blatteis, P.C., 989 Avenue of the Americas, New York, N.Y. 10018,
(212) 244-2929; and Matthew P. Boylan of Lowenstein, Sandler,
Brochin, Kohl, Fisher & Boylan, 65 Livingston Avenue, Roseland,
N.J. 07068, (201) 992-8700.
19. Legal Activities; Describe the most significant legal
activities you have pursued, including significant litigation
which did not progress to trial or legal matters that did not
involve litigation. Describe the nature of your participation
in this question, please omit any information protected by the
attorney-client privilege (unless the privilege has been
waived. )
1. One of the most difficult matters in which I have been
involved was an extended investigation that resulted in the
indictment of an FBI agent for misconduct in connection with his
relationship with an informant. That matter required me to appear
in district court in the Northern District of Ohio on several
occasions, and it required me to be involved in the steps leading
to the indictment of an FBI agent in the United States District
Court for the District of Columbia. The district court judge
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24
before whom I appeared in that case was the Honorable Sam H. Bell,
United States District Judge, Northern District of Ohio.
The matter arose out of an investigation of Teamsters
President Jackie Presser and others in Cleveland for labor
racketeering. Early in the investigation, two Teamsters officials
were prosecuted for criminal violations in connection with their
union activities. One of them, Allen Friedman, was convicted of
embezzling $165,000 from the union by accepting a union salary even
though he was a "ghost" employee of the union. I wrote the
government's brief in Friedman's appeal, and his conviction was
affirmed.
Several FBI agents involved in the case later revealed to the
prosecutors that they had been using Jackie Presser as an FBI
informant for years, and they claimed that they had authorized
Presser to keep Friedman on the union payroll. The implications of
that revelation as to Friedman's case led us, after intensive
internal review, to conclude that we could not permit Friedman's
conviction to stand without taking steps to reveal the matter to
the court and counsel for Friedman. The difficulty was that the
information regarding Presser 's status as an informant was, at that
time, highly sensitive. We ultimately reached the judgment that
the government had to concede that Friedman's conviction was flawed
and move to dismiss the indictment, since the government could not
permit Friedman's conviction to stand under the circumstances and
it could not retry Friedman without revealing the confidential
information. Friedman's lawyers pressed for revelation of the
confidential information. I was given the responsibility of
appearing before the district court and conducting the highly
unusual proceedings on our motion to have the court grant relief to
Friedman without forcing the government to disclose confidential
matters regarding Presser 's informant status. I submitted briefs
and presented argument to the court in an adversary hearing
regarding the appropriateness of the course recommended by the
government. Ultimately, the judge agreed to vacate Friedman's
conviction and grant the government's motion to dismiss the
indictment without reguiring the government to disclose the
confidential matters that were the basis for the motion to dismiss.
Further investigation revealed that an FBI agent who had
reported that the FBI had authorized Friedman to remain on the
payroll was not telling the truth. The agent was subseguently
investigated by the Justice Department's Office of Professional
Responsibility and was indicted in connection with his role in the
Presser matter. I was actively involved in reviewing the charges
and wrote the prosecution memorandum in that case. After certain
of the evidence in the case was suppressed by the district court,
I recommended that an appeal be taken to the United States Court of
Appeals for the District of Columbia Circuit. The appeal, however,
was unsuccessful. See United States v. Friedrick, 842 F.2d 382
(D.C. Cir. 1988) .
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This case was significant because it resulted in a criminal
prosecution of an FBI agent for misconduct in his official duties,
a situation that is quite rare. It was also significant because it
required the Department of Justice to attempt to accommodate, in a
particularly difficult setting, the very strong competing interests
in protecting the identity of confidential informants, and in
ensuring that criminal defendants are not denied a fair trial.
2. A second major non-litigation project on which I have
worked was the coordination of the Department of Justice's response
to the congressional inquiries into the so-called "Abscam"
investigation and prosecutions that were brought against various
Members of Congress and others in the early 1980s. That project,
which took several months of intensive work in 1982, required me to
review the voluminous documentary material generated in each of
Abscam prosecutions, to produce as much of that material as could
be produced without compromising Department of Justice concerns
over the production of deliberative materials, and to find ways to
accommodate the investigating committees' interest in the contents
of the remaining materials. I spent substantial time dealing with
the committee staff of both the House and Senate committees, with
the Senate Legal Counsel, and with Department of Justice lawyers in
any effort to work out arrangements under which the committees'
investigation could proceed unimpeded, without unduly compromising
the Department's interests. I believe that in the end, I was able
to achieve a satisfactory resolution for both the committees and
the Department regarding the production of materials and informa-
tion about the investigations.
3. Beginning in January 1990, I was assigned to assist in
the prosecution of former Panamanian President Manuel Noriega in
the United States District Court for the Southern District of
Florida. My principal responsibility in that case was to prepare
responses to the pretrial motions filed by the defendants, which
challenged the jurisdiction of the United States District Court to
try General Noriega. I prepared pleadings on a variety of issues
that arose prior to trial, and I appeared on two occasions before
the district court to argue the pretrial motions. Although I was
not present for the trial itself, I consulted with the trial team
on legal issues that arose during the course of the prosecution,
and I handled the one pretrial appeal that was taken in that case.
4. Probably the most challenging long-term legal project on
which I worked during the past 12 years was the writing of a two-
volume treatise on grand jury law, which was published by Callaghan
& Co. in 1986. Together with my co-author, Duke University Law
School Professor Sara Sun Beale, I spent about four years of my
spare time writing the book, which covers grand jury practice in
state and federal courts. I began the process in order to learn
more about grand jury law and because I wanted to try to make a
contribution to the law by producing an organized treatment of this
difficult subject, which at the time had not been covered compre-
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hensively m any other treatise. In light of my employment by the
Department of Justice, I did the work on this project in my spare
time, and I did not accept royalties from the book sales.
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II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated receipts
from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive
from previous business relationships, professional services,
firm memberships, former employers, clients, or customers.
Please describe the arrangements you have made to be compen-
sated in the future for any financial or business interest.
None. The only future benefits I expect to receive based on
my Department of Justice employment are the benefits associ-
ated with my government pension plan and compensation for
unused annual leave at the time I leave the Department.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in determin-
ing these areas of concern. Identify the categories of
litigation and financial arrangements that are likely to
present potential conf licts-of-interest during your initial
service in the position to which you have been nominated.
I do not anticipate conflict of interest issues to arise
frequently, but there are three areas to which I would have to
be alert: (1) cases involving entities in which I have an
interest (this would arise only in the case of companies in
which my wife and I have some investment interest) ; (2) cases
in which my wife's law firm is involved; and (3) cases in
which I had some prior participation at the Department of
Justice. .
With respect to cases involving entities in which I have a
financial interest, I would keep a current list of companies
in which my wife and I have investments and I would share that
list with the court clerk's office and my staff in order to
ensure that I would not participate in any way in cases
involving those companies. If my ownership of securities in
a particular company appeared likely to create ongoing
conflict of interest issues, I would arrange to divest myself
of that property, something that would not be difficult to do,
since my investments in particular companies are relatively
small and readily transferable.
With respect to cases in which my wife's law firm is involved,
I would recuse myself, although I would not expect that to
happen with any frequency, since my wife's firm does not
practice before the Federal Circuit.
With respect to any cases in which I have had some participa-
tion while at the Department of Justice, I would recuse
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28
myself. I would be able to recognize those cases in which I
have had prior involvement, and I would be able to consult
with persons in the Department to determine the degree of my
participation in cases in which that issue was not clear. I
would not expect that issue to arise with any frequency, since
I have worked on only a handful of cases in the Federal
Circuit during my tenure at the Department.
In all matters involving potential conflicts of interest, as
well as other matters raising questions of judicial ethics, I
would be guided by the Code of Judicial Conduct.
Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during your
service with the court? If so, explain.
No.
4. List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more (If you prefer to do so,
copies of the financial disclosure report, required by the
Ethics in Government Act of 1978, may be substituted here.)
See financial disclosure report required by the Ethics in
Government Act of 1978, attached.
5. Please complete the attached financial net worth statement in
detail (add schedules as called for) .
See financial statement and related schedules, attached.
6. Have you ever held a position or played a role in a political
campaign? If so, please identify the particulars of the
campaign, including the candidate, dates of the campaign, your
title and responsibilities.
No.
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III. GENERAL (PUBLIC)
1. An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some tine to participate in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances and
the amount of time devoted to each.
While I was in private practice, I spent a considerable
portion of my time on pro bono work. The largest single pro bono
project on which I worked was the unpaid representation of a
defendant in a federal criminal case in the District of Maryland.
The defendant in that case would not have been able to afford
representation on a fee basis, although he was able to help defray
some of the out-of-pocket expenses associated with the case.
I handled the case when it first came into the office and
through the bail and arraignment stages. When the case appeared
likely to go to trial, I served as associate counsel in the
pretrial proceedings and at trial. I handled all of the pretrial
motions, much of the research and witness preparation, and some of
the trial proceedings. I spent a total of approximately 400 hours
on that case.
Since leaving private practice and joining the government, I
have not engaged in representation of private parties in any
respect, whether pro bono or otherwise. In my work in the
Department of Justice, however, I have attempted to serve the
interests of the disadvantaged in other ways.
When I became an Assistant to the Solicitor General, I
requested that I be assigned to handle employment discrimination
cases, and I was given that assignment. During the period that I
served as an Assistant to the Solicitor General, I participated in
a number of employment discrimination cases, spending approximately
30 percent of my time on that subject matter and working closely
with the Civil Rights Division and the Equal Employment Opportunity
Commission. I believe that the work I did in that capacity
advanced the interests of persons subjected to employment discrimi-
nation, which was at that time and continues to be a significant
barrier to economic and social advancement for disadvantaged
persons.
In 1991, I argued the case of Wilson v. Seiter in the Supreme
Court. In that case, I argued for a legal standard for prison
conditions cases that was significantly more favorable to the
prisoners than the standard adopted by the lower court and
supported by the respondent State of Ohio. Although it was unusual
for the Department to be on the same side of a prison case with the
204
30
National Prison Project of the ACLU, our position in the Wilson
case was compatible with the position taken by our co-counsel from
the National Prison Project. I believe our position was appropri-
ately protective of prisoners, who often do not have the ability to
protect themselves on those occasions when they are subjected to
gravely inadequate conditions and care. I spent approximately 150
hours on that project.
As Acting Solicitor General, I authorized the government to
participate as amicus curiae in two employment discrimination cases
in the Supreme Court. In each of those cases I authorized the
government to take positions that I believe promoted the interests
of disadvantaged persons. The first of those cases was Harris v.
Forklift Systems. Inc.. 114 S. Ct. 367 (1993), a sexual harassment
case. The second was Landqraf v. USI Film Products. No. 92-757,
and Rivers v. Roadway Express. Inc.. No. 92-938. In the Harris
case, in which I was directly involved in briefing the case, we
took the position, ultimately adopted by the Supreme Court, that
sexual harassment claims could be established without the need for
proof of some kind of psychological injury to the plaintiff. In
the Landqraf and Rivers cases, we took the position that the 1991
Civil Rights Act should be given retroactive effect, making the
procedural and remedial provisions of that statute available to
plaintiffs in employment discrimination suits that pre-dated the
enactment of that statute. The Supreme Court ultimately rejected
our argument in the Landqraf and Rivers cases. I spent a total of
approximately 100 hours on those cases.
2. The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a judge
to hold membership in any organization that invidiously
discriminates on the basis of race, sex, or religion. Do you
currently belong, or have you belonged, to any organization
which discriminates — through either formal membership
requirements or the practical implementation of membership
policies?
No.
If so, list, with dates of membership. What you have done to
try to change these policies?
N/A.
205
31
3. Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts?
There is not a selection commission for the Federal Circuit.
If so, did it recommend your nomination?
N/A.
Please describe your experience in the entire judicial
selection process, from beginning to end (including the circum-
stances which led to your nomination and interviews in which you
participated) .
I have been interested for several years in the prospect of
judicial service on a federal court. In early 1994, I learned that
a position on the Federal Circuit was open, so I sent papers to the
White House Counsel's office indicating my interest and setting
forth my legal and personal background. In late April, I was
advised that I was under consideration for the position. I have
spoken informally with several persons in the White House Counsel's
office and the Department of Justice about my interest in the
position, and I was interviewed at the White House on May 27, 1994.
I was interviewed by a representative of the ABA on June 9, 1994,
as part of the ABA's judicial screening process. I was investigat-
ed by the FBI during May 1994. The White House provided me with
forms relating to the position and I completed and returned them.
4. Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or guestion in a manner that could reasonably be
interpreted as asking how you would rule on such case, issue,
or guestion? If so, please explain fully.
No.
5. Please discuss your views on the following criticism involving
"judicial activism."
The role of the Federal judiciary within the Federal govern-
ment, and within society generally, has become the subject of
increasing controversy in recent years. It has become the
target of both popular and academic criticism that alleges
that the judicial branch has usurped many of the prerogatives
of other branches and levels of government.
Some of the characteristics of this "judicial activism" have
been said to include:
206
32
a. A tendency by the judiciary toward problem-solution
rather than grievance-resolution;
b. A tendency by the judiciary to employ the individual
plaintiff as a vehicle for the imposition of far-reaching
orders extending to broad classes of individuals;
c. A tendency by the judiciary to impose broad, affirmative
duties upon governments and society;
d. A tendency by the judiciary toward loosening jurisdic-
tional requirements such as standing and ripeness; and
e. A tendency by the judiciary to impose itself upon other
institutions in the manner of an administrator with
continuing oversight responsibilities.
It is certainly true that federal courts have assumed a more
prominent role in the functioning of state and federal government
during the past 50 years. I believe it overstates the matter,
however, to say that the courts have "usurped" the prerogatives of
the states or the other branches of the federal government.
In certain areas, of course, the federal courts have assumed
a major role where they previously had no role or only a minor one.
Habeas corpus review of state criminal convictions, for example,
has been an area of great expansion in the role of the federal
judiciary. Federal courts likewise have been very active in
creating new law in the area of constitutional torts and in
litigation involving school desegregation, prison administration,
and the death penalty.
Those areas, however, are exceptional. For the most part,
federal court judgments affect only the particular parties before
them, and only with respect to claims that Congress has clearly
committed to the federal courts to resolve. Only occasionally are
federal courts presented with the kinds of requests for broad
relief that call on the courts to enter judgments that affect large
numbers of people and significantly influence broad social policy.
Even when presented with such claims, most federal courts are
cautious about granting expansive relief.
To be sure, particular decisions of federal courts imposing
broad relief against governmental entities have been highly visible
and controversial. In spite of the publicity and controversy
attending them, however, I believe that many of those decisions are
correct. I have no doubt, for example, that it was proper for the
Supreme Court to decree that school desegregation must be ended,
even though that step meant that the federal courts would be
embroiled in controversial social policy issues for many years. I
likewise have no doubt that the federal courts have properly
207
33
granted relief against some state prisons that have engaged in
systematic denial of basic levels of humane treatment to prisoners.
Those measures are required, I believe, by the obligation of the
judiciary to enforce valid constitutional and statutory claims of
persons who seek relief from the courts. Indeed, Congress has
acquiesced in court involvement in such matters in a number of ways
and has even mandated that the courts play a central role in
restructuring governmental institutions, through legislation such
as the Civil Rights of Institutionalized Persons Act and the Voting
Rights Act.
It may be that particular judgments in these and other areas
have been wrong or have gone too far; it would be surprising if the
courts did not make occasional errors in cases involving broad
social policy issues, as they do in any other area. But the fact
that errors are made does not justify condemning the role of the
federal courts in enforcing constitutional and statutory rights
through decrees that affect large numbers of people.
208
34
FINANCIAL STATEMENT
Assets:
Funds on Deposit in Banks and Credit Unions $ 51,684.94
Dept of Justice Credit Union: $25,747.96
Citicorp Bank $23,220.10
First American Bank $ 2,716.88
House (most recent appraisal, 1986) $ 565,000.00
Personal property (estimated value) $ 25,000.00
Personal Thrift Savings Plan $ 97,958.35
Account at Merrill Lynch Pierce Fenner & Smith $ 225,936.00
(see Schedule A for detailed breakdown)
IRA (self and spouse) — ABA-Equitable Co. $ 75,023.19
Bredhoff & Kaiser Profit Sharing Plan (spouse) $ 406,561.00
(see Schedule B for detailed breakdown)
401(k) plan (spouse) $ 56,053.50
»
Total Assets: $ 1,503,216.98
Liabilities: None.
Net Worth: $ 1,503,216.98
209
35
SCHEDULE A (Securities held in Merrill Lynch account)
Mutual Funds Estimated Current Value
Nicholas Applegate Core Growth $30,568
Port Class A
Alliance Growth Fund Class A $47,663
Keystone Fund of the Americas Class B $21,993
ML Eurofund Class A $23,636
Merrill Lynch Global Allocation Fund Class A $12,385
Merrill Lynch Developing Capital Markets Fund $10,167
Municipal Bonds
Michigan Mun Bd Auth Rev Local Gov't Ln 7%CI D MBIA
Aug 91, 00.000% May 15, 2006 $14,804
Maricopa County Arizona School District 28
Kyrene Elem FGIC Rfdg 5.5% Ser C
Nov 93 00.000%, July 01, 2007 $22,735
Metro Pier-Exp at II Ded
St Tax Rev A 6.55%C FGIC
Jan 93 00.000% June 15, 2008 $12,545
Socorro, Texas, Independent School Dist.
5.45% CI RFDG PSF GTD
Feb 94 00.000% Sep 01, 2009 $ 9,615
Baltimore Maryland Prin M-Raes
7.5% 10/15/10 - 25 6.75%CI
May 91 00.000% Oct 15, 2010 $19,562
Money Funds
CMA Money Account $ 2 63
210
36
SCHEDULE B (Securities held in spouse's Bredhoff & Kaiser profit-
sharing plan)
Securities Estimated Current Value
Resolution Funding Corp. Coupon Strips $ 8,496
Zero %, July 15, 2000
Resolution Funding Corp. Coupon Strips $ 8,870
Zero %, April 15, 2005
Government Trust Certif. $ 8,906
Israel Class 3-C, Zero % May 15, 2010
American International Group, Inc. $11,671
Archer Daniels Midland $ 8,757
British Petroleum PLC ADR New $17,758
Entergy Corp New $11,516
General Motors Corp. Class E $12,381
General Public Utilities $11,356
Health Care Property Invs. $15,677
International Business Machines Corp. $ 7,875
Nationwide Health Pptys $13,294
Property Tr America SBI $14,997
Raychem Crp Del Com $ 5,531
Rowan Companies, Inc. $15,750
Simon Ppty Group, Inc. $13,687
Standard Fed. Bk Troy, Michigan $ 9,406
Toys R Us $15,975
Vencor, Inc. DE, PV $ 9,787
211
37
SCHEDULE B (continued) :
Mutual Funds Estimated Current Value
AIM Equity Funds, Constellation Fund $62,990
Alliance Growth Fund Class A $12,555
Merrill Lynch Global Allocation Fund, Class A $27,885
Merrill Lynch Developing Capital Markets Fund $17,208
New York Venture Fund $49,132
Nicholas Applegate Core Growth Port Class A $12,136
Money Funds
CMA Money Fund $ 2,965
212
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MICHAEL M. BAYLSON
via meLaeopian & mat class mail
Hoxiorable Alien Specter
United States Senate
303 Hart senate office Building
Washington, D.C. 20510
Re: Sarah s. vanee
Dear Arlen:
I would like to otrongly recommend Sarah Vance, who hae
been nominated by President Clinton to serve as United States
District Court Judge for the Eastern District of Louisiana.
I have come to know sarah through my activities in the
ABA Antitrust Section. She is an outstanding lawyer, a partner
in the firm of Stone, Pigman, Walther, Wittman £ Hutchinson in
New Orleans, and very much deserves this nomination. I strongly
recommend that you fully support her candidacy when she appears
in front of the Judiciary Committee, which may be this week.
Sarah graduated first in her class from Tulane„
University Law School, and has written outstanding scholarly
articles in the field of antitrust law. I am enclosing the first
page from her most recent article, which has received widespread
attention among antitrust lawyers for its analytical approach ho
a prime health care reform issue.
I also learned that Sarah's nomination came about as a
result of her reputation at the Bar, aB she has not been
politically active (and indeed, some other politically active
candidates who had previously been recommended for thin position
withdrew their names) . Sarah has received widespread and
bipartisan support from the New Orleans Bar where she is
uniformly held in high regard.
Frances and I got to know the personal side of Sarah at
a recent antitrust meeting. She i3 charming and vivacious, but
also very bright. She has the temperament to be an outstanding
1udge.
Please do call if you have any questions
MHB:lm
enclosure
cc Sarah
Vance, Esquire
213
IMMUNITY FOR STATE-SANCTIONED PROVIDER
COLLABORATION AFTER TICOR
Sarah S. Vance*
In the current public debate over the crisis in health care, health care
providers have Identified the antitrust laws as a significant barrier to
collaborative activities that could reduce health care costs and improve
access to quality health care.1 As a result, there has been an assault on
legislatures at both the stale and national level to create exemptions
from the federal and state antitrust laws for various forms of provider
collaboration. In the last two years, these efforts came to fruition in the
form of legislation In at least thirteen states. At the national level, the
Federal Trade Commission and Department of Justice issued joint pojicy
statements that created antitrust safety zones exempting some hospital
cooperation ventures from antitrust scrutiny.2
* Member uf die Louisiana Bar. The author acknowledge* th« substantial assistance of
Stephanie D. Shuler in the preparation of this article.
' E.g., Amsuoak Hospital Ast'v, Hoi?itai. Cms ARnax-noK: The Hud por ak Appro*
rUATE Ajrmxurr Fquct (1992) (hereinafter Hosmtal Colaasojutioh]. Pharmaceutics!
concerns have also made a plea for antitrust Immunity w'ucu their prices were attacked
by the ftintnn Administration.
1 U.5. Department of justice and Federal Trade CoramUtion, Statements of Antitrust
Enforcement Policy in the Health Care Area (Sept. 15, 1993) (hereinafter DOJ/FTC Policy
Statements!, nprinud m 64 Antitrust tc Trade Reg. Kep. (BNA) No. 1031 at M. The
stated purpose of the Policy Statements is to resolve any antitrust uncertainty that might
deter beneficial mergers or joint ventures. They create antitrust safety zones for certain
conduct: (1) hospital mergers, where one of the met gins hospitals has less than 100 licensed
beds and an average daily inpatient census of less than 40 patients; (2) huspiud juiiu
venture* involving high teehnrwngy equipment if the joint venture is reasonably necessary
to cover the cost and does not include a hospital or group of hospitals (hat could have
Offered a competing service; (3) physicians' provision of nonpriee information to purchaser;
of health care services; (4) hospital participauon In exchanges of price and cost information
where the survey ii managed by « third party, the information collected is more than 3
utuiidu old, and price or cost data are baaed on data from at least 5 hospital* enri aggregated
SO that prices Charged by particular liospltais cannot be identified; and (6) joint purchasing
arrangemenu among health care providers if the group's purchases account, fur less thar.
S5% of total purchase* of the pmdurt or service and the cost of the product or service
accounts for leas than 309b of each participants' total reveruir*. These safety zones are not
absolute, and conduct falling within the soncs may still be challenged in "extraordinary
circumstances." The Policy Statements also set forth guidelines for analysing conduct of
the type covered hy the tones that does not meet the rones' stated criteria.
Clearly the safety sones provided in the Policy .Statements and the State legislation
400
NOMINATION OF LOIS J. SCHIFFER, WASH-
INGTON, DC, TO BE ASSISTANT ATTORNEY
GENERAL, ENVIRONMENT AND NATURAL
RESOURCES DIVISION, U.S. DEPARTMENT
OF JUSTICE
THURSDAY, AUGUST 18, 1994
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 9:36 a.m., in room
SD-226, Hon. Patrick J. Leahy presiding.
Also Present: Senator Hatch.
OPENING STATEMENT OF SENATOR LEAHY
Senator Leahy. Good morning. I welcome you here. The Judici-
ary Committee meets today for two reasons, one, of course, the
Senate has decided we would much rather be here in Washington.
With all due respect to my esteemed colleague from the House —
and, I might say, someone I have referred to as the best represent-
ative to Congress that the District has ever had by far, and one of
the best that any Congressional District anywhere in the country
has had— but with all due respect, I must admit that given a choice
of August in Washington or August in Vermont, I have a certain
parochial desire to be in Vermont.
We are here to consider the nomination of Lois Schiffer to be the
Assistant Attorney General for the Environment and Natural Re-
sources Division of the Department of Justice. We all know that
the effective enforcement of the laws designed to protect our envi-
ronment and our quality of life has to be a priority.
We are hearing a lot of concerns about health care reform and
the crime bill, but it is also important that we make time to fill
this essential enforcement post. We have been without an Assistant
Attorney General to head the Environment and Natural Resources
Division of the Department of Justice for over 3 years, as I under-
stand it. That is 3 years too long.
In my own State, from Lake Champlain on the west, to the Con-
necticut River on the east, from the Northeast Kingdom down
through the Green Mountains, we are a State that is defined by its
environment. Our values, our lifestyle, our livelihood is directly de-
pendent on our air, our water and our land in Vermont.
In terms of environmental protection, no Federal office is more
critical than that of the Assistant Attorney General for the Envi-
ronment and Natural Resources Division of the Department of Jus-
(215)
216
tice. The detail and direction of the Justice Department's environ-
mental enforcement policy is determined and articulated from your
office. It holds great opportunities for innovation and leadership.
I believe we need a strong and decisive leader, an effective advo-
cate for environmental enforcement, a champion who can motivate
not only this Justice Department division, but its client depart-
ments.
You are serving as the Acting Assistant Attorney General. I be-
lieve you returned to the Department in July of last year. Is that
right, Ms. Schiffer?
Ms. Schiffer. That is correct, Senator.
Senator Leahy. You had been in private practice with the firm
of Nussbaum and Wald. You had a term as general counsel at Na-
tional Public Radio. You have taught environmental law, and you
had been at the Department in what was known as the Lands Divi-
sion and is now the Environment and Natural Resources Division.
I have heard from a number of distinguished Vermonters in sup-
port of your nomination. We have received letters of support from
the National Audubon Society, the Sierra Club, and others, and we
will put those in the record.
[See pages 290-302 for above-mentioned letters.]
Senator Leahy. We are going to want to hear first from Delegate
Norton, but I think before we start, why don't I swear you in, Ms.
Schiffer.
Do you solemnly swear the testimony you give in this matter will
be the truth, the whole truth and nothing but the truth, so help
you God?
Ms. Schiffer. I do.
Senator Leahy. Before we begin, do you also have any members
of your family here with you?
Ms. Schiffer. I do, Senator Leahy.
Senator Leahy. Would you note them because some day you may
want to look back on this record and know who was here?
Ms. Schiffer. I would be pleased to do that. I have with me my
mother, Clara Schiffer.
Senator Leahy. Ms. Schiffer, it is nice to have you here.
Ms. Schiffer. My sister, Susan Schiffer, and my brother, Alan
Schiffer. I note that I have a sister, Nancy Miller, and her family
who live in Wisconsin who could not be here with us.
Senator Leahy. Thank you.
Ms. Norton, we are delighted to have you over here. You honor
the Senate by coming on this side to the Capitol.
STATEMENT OF HON. ELEANOR HOLMES NORTON, A
DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA
Delegate Norton. Thank you very much, Mr. Chairman. It is a
great pleasure to be here and to see you again, and I very much
appreciate your very kind words and the wonderful service that
you have been always to the District of Columbia.
It is a very special pleasure to come to introduce Lois Schiffer.
I first met Lois when we served together on the Board of Governors
of the D.C. bar, so I can testify personally to her ability and her
leadership.
217
Seldom does a nominee for a Presidential appointment come with
such broad and distinguished experience literally from within the
ranks of the department. Lois has had very extensive experience in
the Division she has been nominated to head both in the Carter
and the Reagan administrations. She is a proven leader of the Divi-
sion. She was chief of the General Litigation Section, is familiar
with its 70 statutes. Her proven excellence is demonstrated the 4
years in which she received the Department's outstanding perform-
ance rating.
Lois Schiffer is a Phi Beta Kappa graduate of Radcliffe and a
cum laude graduate of Harvard Law School. She has been in pri-
vate practice. Her public voluntary service experience with organi-
zations such as American Rivers and the Women's Legal Defense
Fund has been especially dedicated. She has also worked profes-
sionally in the public service sector as general counsel of National
Public Radio and as an attorney for the Center for Law and Policy.
I think, Mr. Chairman, that you can tell that Lois Schiffer is un-
daunted by challenges, such as those that she will find at the Envi-
ronment and Natural Resources Division, by the fact that one of
her goals is to hike in all our national parks.
It is a special pleasure to recommend this native Washingtonian
who has undoubtedly already completely conquered Rock Creek
Park. [Laughter.]
Senator Leahy. Thank you. I understand, because of what is
happening over in the House, you have got a full agenda over
there, you must leave; but thank you very much for coming over
here.
Delegate Norton. Thank you, Mr. Chairman.
Senator Leahy. Ms. Schiffer.
TESTIMONY OF LOIS J. SCHIFFER, WASHINGTON, DC, TO BE
ASSISTANT ATTORNEY GENERAL, ENVIRONMENT AND NATU-
RAL RESOURCES DIVISION, U.S. DEPARTMENT OF JUSTICE
Ms. Schiffer. Thank you, Senator Leahy. It is a great honor to
have an opportunity to come before this committee to be considered
for the job of Assistant Attorney General for the Environment and
Natural Resources Division. The Division represents the people of
the United States in court on such issues as pollution control, pub-
lic lands and natural resources, wildlife, and trust responsibility for
Native Americans.
It works on cases in civil court and it prosecutes criminal cases
against polluters. It handles cases that affect whether Americans
will have clean air and safe drinking water, and cases that relate
to the stewardship of our public lands and natural resources for fu-
ture generations, consistent with jobs and a sustainable economy.
These are matters of great importance to our Nation. It would be
a privilege to be confirmed for the job of working toward these
goals.
A century ago, each of my grandparents emigrated to this coun-
try from Eastern Europe. As they set foot on these shores, they had
hope that their lives and those of the children they would eventu-
ally have would be better. My parents, their children, were born
into families with no money, but had the great American oppor-
tunity of education.
218
They came of age during the Great Depression of the 1930's.
Both of them came to Washington during those years to work for
the government. We grew up believing that our government could
do good and make life better for the American people, that the hope
and expectations my grandparents brought here could be furthered
in this way.
I love this land in all of its geographic variety, its diversity and
complexity. I have hiked and rafted in many places, and I would
say for you I have hiked the Long Trail in Vermont, or part of it,
and I have visited almost every State. The job for which you are
considering me would make me a principal lawyer for the shores
my grandparents first stepped on, for the shores of the other end
of our Nation as well, and for all the lands and mountains, rivers
and cities and people in between.
It would give me the opportunity to carry out my parents' teach-
ing that our government, which is, after all, us, can do good for the
American people. It would give me the opportunity to work with
Attorney General Reno, whose great philosophy is that you can do
the right thing if you really want to do it. It would give me the op-
portunity to work for clean air and clean water for all the people
of our Nation, and for sound stewardship of our lands and waters
for this generation, for my niece and nephews, and for future gen-
erations.
If I am confirmed, I would look forward to working with this
committee and with the Congress on these matters. The position is
a high public trust. If you confirm me, it would be an honor to un-
dertake it.
Thank you.
QUESTIONING BY SENATOR LEAHY
Senator Leahy. Thank you very much. I appreciate your concern
for our land. I also note your forward thinking in hiking the Long
Trail up in Vermont in obvious anticipation of this hearing today.
[Laughter.]
Then when they picked out which member would be chairing, it
would be me.
I am also touched by what you said about your grandparents. My
maternal grandparents came to this country not speaking a word
of English, my grandfather first. He worked for a few years until
he had enough money to send back for my grandmother and the
children and bring them to this country. My mother grew up speak-
ing English only when she started school. Actually, it was the same
situation with my wife.
I think that in these cases you ofttimes bring a sense of what
this Nation is, because obviously they were attracted, as my wife's
parents were, as my grandparents were, to come to this country.
I think we grew up with the same kind of sense that this is a Na-
tion to be valued and what we have here is to be valued, but that
we also have a responsibility to make it even better and to give of
ourselves for future generations.
You have had a chance to be in a number of positions where you
could do that. You have served as a section chief in the Division
during the Carter administration. You were a special litigation
counsel during the Reagan administration. You have taught envi-
219
ronmental law at my alma mater, Georgetown. You were on the ad-
ministration's transition team.
Taking all these experiences, what do you see as the primary
mission and goals of the Environment and Natural Resources Divi-
sion?
Ms. SCHIFFER. I think the primary mission is to protect our envi-
ronment in a way that is practical and that assures that there is
an even-handed approach; that is, many of our laws really require
voluntary compliance by Americans, and it seems to me what is im-
portant is to encourage that voluntary compliance by being sure
that people who aren't complying are brought to justice so that the
people who are complying are not disadvantaged by having com-
plied. So I see the mission as protecting our public lands and wa-
ters in a fair way, and ste warding our lands for future generations.
Senator Leahy. Those are going to be your focus and priorities?
What do you think is probably going to be the major issue facing
you, say, between now and the end of the year?
Ms. Schiffer. I think the most major issue that has faced me
in my capacity as Acting Assistant Attorney General has been as-
suring that the Environmental Crime Section becomes an efficient
and effective organization, and I believe that we have taken signifi-
cant steps toward that end.
I think for the rest of this year what will be important is assur-
ing that we have integrated enforcement; that is, that civil and
criminal laws and administrative agency action work together ef-
fectively, and looking at specific cases such as the Pacific North-
west spotted owl case, which is a matter of high priority to the
President, and assuring that that case moves along smoothly.
Senator Leahy. During the last year, if you were to try to list
some of the most important accomplishments of the Division, but
also those areas where you probably had the biggest frustrations
or disappointments, what would you list in each category?
Ms. Schiffer. Well, in terms of accomplishments, I think that
we really now have a very strong civil enforcement program. We
have had a $1 billion year; that is, the combination of penalties and
the value of injunctive relief that we have received total over $1
billion. I think that that is a very important step to assuring that
the American public is having its pollution laws enforced so that
it will have a healthy environment that it deserves.
I also think that we have had great success in working on alter-
native dispute resolution matters and in moving the Division to
taking a hard look at cases to see how they can be handled effi-
ciently and expeditiously, including being settled in those ways.
In terms of frustrations, I think my greatest frustration has been
the Crime Section, and we are hopefully putting that behind us
and turning over a new leaf and moving forward with it.
Senator Leahy. I have been told that morale in the past within
the Division has been quite low. What have you been doing to im-
prove morale?
Ms. Schiffer. I think now morale actually is quite high, and I
think that what I have done is work hard to convey to people, first,
that I think that career attorneys in the Division are a very impor-
tant component of the work of the Division and I value the work
that they do and provide. Second, I think just enthusiasm for the
220
fact that we are enforcing the laws in a vigorous way has done a
lot to improve morale there.
Senator Leahy. Your budget has a significant increase in the
coming year in the resources devoted to the Environment and Nat-
ural Resources Division. What are the primary things that increase
would be used for?
Ms. Schiffer. For several matters. First of all, Congress passed
a number of laws, including amendments to the Clean Air Act, and
as the agencies issue regulations under those laws, we anticipate
challenges to the regulations that we have to defend.
Second, we anticipate even broader enforcement, and a number
of the additional resources will go toward a strengthened enforce-
ment program. Finally, we will have a number of challenges to ac-
tions of the government on a variety of new theories, such as
takings, that we are going to need to defend.
Senator Leahy. Has the Environmental Crime Section been ag-
gressive enough in the past?
Ms. Schiffer. It is hard for me to judge the past. What I have
wanted very much to do is turn toward the future, and I am very
committed to a strong and effective environmental crimes program,
as is the Attorney General, and we think to that end we are now
bringing strong cases. We have a new section chief who is a career
prosecutor.
Senator Leahy. That is Ronald Sarachan?
Ms. Schiffer. That is Mr. Sarachan, and he has a number of
ideas for how we can look at pollution and develop cases in strong
and effective ways. So I think we are moving forward with the vig-
orous program that the Attorney General and I want.
Senator Leahy, Well, would there be other personnel changes in
that area?
Ms. Schiffer. I have suggested to Mr. Sarachan that he should
take a look at the management of the entire section, and he is
doing that.
Senator Leahy. What about changes in policy since January
1993?
Ms. Schiffer. Changes in policy?
Senator Leahy. In policy.
Ms. Schiffer. I think that I have been back at the Department
since July 1993 and have been the Acting Assistant Attorney Gen-
eral only since September 1993, and I have made very clear that
I think that strong and effective criminal enforcement is an impor-
tant component, and the Attorney General has made that equally
clear.
Senator Leahy. Now, we have received letters regarding the Di-
vision's review of the Rocky Flats case. They are critical of the re-
view. They suggest that it contains glaring inconsistencies and in-
accurate statements based on incomplete information.
What was your role in connection with the Rocky Flats case and
of that review?
Ms. Schiffer. First of all, Senator, I have to say that I don't
agree with the characterization of the report. But, in fact, questions
were raised about the Division's handling of the Rocky Flats case,
which is a case that was completed long before I got back to the
Division.
221
The Department determined that an internal review should be
done, and the Associate Attorney General asked me to do that. I
began work on that, but when I was named to be head of the Divi-
sion it was determined that I wouldn't have the time to do it and
so that responsibility was transferred to other people who com-
pleted the report. So I really had nothing to do with the final work
product.
Senator Leahy. We have also received letters regarding an ex-
pert witness, Raleigh Farlow, against the Puregrow Company in a
Justice Department case. Apparently, questions were raised about
the credentials of that expert witness. When did you first become
aware of that?
Ms. Schiffer. Senator, to the best of my knowledge, I never
heard of Raleigh Farlow until the spring of 1994 when I read about
him in a newspaper article. I then asked about him and what I
learned is that he was a potential witness in the Puregrow case;
that some questions had been raised about representations he had
made about his credentials; that he had also had some role in a po-
tential civil case for the Division, and that pursuant to my standing
instructions not particular to that case, but my standing instruc-
tions that any serious question about people's credentials must be
brought to the attention of courts and the other side in cases, the
question about Mr. Farlow's credentials was made known to the
court. But I really never heard anything about it until the spring
of 1993 when it was in a newspaper article.
Senator Leahy. When I met with Attorney General Reno before
she was appointed, and then I believe also in answer to questions
here, she was concerned about the fact that the Department of Jus-
tice in Washington sort of took over a lot of these environmental
issues and did not pay much attention to either the local prosecu-
tors or the U.S. attorneys.
Have you taken steps to change that from what it had been in
the past?
Ms. Schiffer. I have, Senator Leahy. My view, as is the Attor-
ney General's view, is that the Justice Department in Washington
lawyers need to work in partnership with the U.S. attorneys' of-
fices, and I have taken significant steps to forward that partner-
ship both by encouraging all of our lawyers to work closely with
U.S. attorneys' offices and by spending a fair amount of time talk-
ing to the U.S. attorneys themselves about how we can work coop-
eratively together. I have been told by a number of U.S. attorneys
that we have made great strides in that direction.
Senator Leahy. The reason I mention that is in the waning days
of the last administration there was a revision of the blue sheet
that was issued to the U.S. Attorney Manual that basically shifted
everything to Washington, which rather surprised me coming from
an administration that always talked about let's get everything out
of Washington and get it back to the people. This was pushing it
all back to Washington. That is why I asked the question now, are
we doing with this administration what the last administration
talked about doing, but apparently didn't do in that regard?
Ms. Schiffer. Well, Senator Leahy, the blue sheet, as I am sure
you are aware, is an amendment to the U.S. Attorney Manual that
allocates responsibility for handling of different kinds of cases, in-
222
eluding criminal cases. The last administration at the very end, in
January 1993, did issue a blue sheet which requires prior approval
of a number of kinds of environmental criminal cases in Washing-
ton.
Once I became the acting head of the Division, it became clear
to me that whatever was actually happening under that blue
sheet — and, in fact, we weren't stopping any prosecutions under it,
but the blue sheet itself had become a significant bone of conten-
tion and was getting in the way of what I saw as an important
partnership between the U.S. attorneys and the main Justice De-
partment.
So I undertook, with the head of the relevant committee of U.S.
attorneys, that we would revise that blue sheet by this summer,
and we have been working in a cooperative and consensual way
with broad consultation to revise that blue sheet.
Senator Leahy. Well, I would hope so because I think that we
have sometimes some very real concerns, and legitimate concerns,
in States all over the country that when a great deal of work has
been done at the local level both with the local prosecutors and
with the U.S. attorney, that somebody sitting in Washington with-
out the knowledge and the understanding of the area suddenly
takes a decidedly different view.
I well realize that there are some cases, because of their very sig-
nificance, that may work all the way up to the Attorney General,
but I should think that should be more the exception rather than
the rule. We have to assume good U.S. attorneys will be appointed
and good checks and balances will be put in at that level, and we
ought to give them some ability to act.
Ms. Schiffer. Senator Leahy, you raise a very good and impor-
tant point. In fact, one of the things we have been encouraging is
the establishment of what are called law enforcement coordinating
committees, which are committees that work out of the U.S. attor-
neys' offices and include people from the U.S. attorneys' offices and
State and local prosecutors. The main Justice Department has been
working with those committees, so that indeed we are very much
taking advantage of the great experience and knowledge that local
prosecutors have. I agree with you. I think it is important that the
main Justice Department work cooperatively, rather than as an ob-
stacle to assuring that the laws are enforced.
Senator Leahy. I have further questions, but Senator Hatch is
here and I want to yield to him.
OPENING STATEMENT OF SENATOR HATCH
Senator Hatch. Well, thank you, Mr. Chairman.
Good morning. We are happy to have you here and welcome you
to the committee.
Ms. Schiffer. Thank you, Senator Hatch.
Senator Hatch. I know that for the last several months you have
eagerly awaited the opportunity to come before this committee and
discuss your views on a number of issues and matters, and I look
forward to that discussion.
With a nominee serving in an acting capacity in the position for
which she seeks confirmation, this nomination has unavoidably be-
come intertwined with ongoing and unfolding events involving the
223
Environment and Natural Resources Division which the nominee
oversees. So I look forward to this opportunity for all involved to
resolve some of the questions and problems, and I am sure you can.
Ms. Schiffer, as you know, there have been many questions and
allegations raised in the press and elsewhere concerning the Envi-
ronmental Crimes Section of the Division. So I think this is an op-
portunity to air some of these concerns and questions and to have
your reaction to them.
Further, it should not be lost in all of this that your Division has
very critical responsibilities in substantive areas that impact prop-
erty rights — an area of the law in which I think many of us, and
certainly I, have a particular interest.
I have always believed that a balance has to be struck between
the very important need to protect the environment, the birthright
of posterity, and the need to protect private property rights, which,
of course, is the basis of civil society.
All too often, in the rush to implement and to enforce environ-
mental laws, the little guy, the mom-and-pop landowner and the
storekeeper, must pay a disproportionate cost to protect the envi-
ronment by surrendering property. Now, I hope we can hear your
views on this issue and on other important substantive issues. So
I appreciate your being here and I am glad to be able to see this
hearing proceed.
Let me just ask a number of questions that hopefully will put
this matter to rest. The Department of Justice, in general, and the
Environment and Natural Resources, in particular, has a special
obligation, in the view of many of us, to protect individuals rights,
including property rights.
I mention the Environment and Natural Resources Division be-
cause of its central role in enforcing environmental laws and regu-
lations. It is my view that the need to protect the public from envi-
ronmental harm must be balanced against the constitutionally pro-
tected property rights of the individual, and the key is where do
you draw the line.
Now, I have to tell you that all too often the small landowners
have found themselves at the mercy of Federal departments and
agencies. Mom-and-pop ranchers and landowners, including those
found in my home State of Utah, have been unfairly denied their
right to use their land because, for instance, the land may be con-
sidered to be wetland, even if the planned use of the land would
not be considered a nuisance at common law.
In the recent Supreme Court opinion in Dolan v. City of Tigart,
the Court stated that it saw, quote, "no reason why the Takings
Clause of the Fifth Amendment, as part of the Bill of Rights, as
the First or Fourth Amendment, should be relegated to the status
of a poor relation in these comparable circumstances," unquote.
QUESTIONING BY SENATOR HATCH
Now, in your opinion, should fifth amendment economic rights be
accorded the same degree of protection as other individual rights
guaranteed by the U.S. Constitution, and why or why not?
Ms. Schiffer. Senator Hatch, before I answer your question, if
I could say, as I said to Senator Leahy, I had hiked on the Long
Trail, I would like to say that I have actually hiked in each of the
224
national parks in Utah, too, and they are very beautiful national
parks.
Senator Hatch. They really are, aren't they?
Ms. Schiffer. Lovely national parks, indeed.
Senator Hatch. I think that is pretty good. You have naturally
risen in both of our eyes, I have to say. [Laughter.]
Ms. Schiffer. I am pleased to know that. I even did that hiking
before I knew you would be on this panel.
Senator Hatch. Well, that is even more impressive.
Ms. Schiffer. My understanding of my duties in the Justice De-
partment now and, if I am confirmed, what my duties would be
would be to support and uphold the Constitution of the United
States, and I believe that means every provision in the Constitu-
tion.
Senator Hatch. So do you believe, then, that fifth amendment
economic rights should be accorded the same degree of protection
as these other rights?
Ms. Schiffer. I believe that all of the provisions of the Constitu-
tion are important provisions and provide important protections to
the American people.
Senator Hatch. Well, do you believe that environmental regula-
tions should ever justify the abrogation of private property rights,
and if so, under what circumstances?
Ms. Schiffer. Senator Hatch, what the fifth amendment pro-
vides is the right for compensation if there is a taking of property,
and I believe that if there is a taking of property within the mean-
ing of the Constitution, then people whose property is taken should
be compensated, just as I think that the other rights that are pro-
tected by the Constitution should be carried out fully.
Senator Hatch. Do you think government has an unlimited right
to take property if they give just compensation?
Ms. Schiffer. My understanding of the fifth amendment is that
what it provides for is compensation if there is a taking of prop-
erty, ana I believe it is a development of other law that sets forth
what authority government has to act to take property.
Senator Hatch. Executive Order 12630, which is still in effect,
requires executive departments and agencies to conduct a takings
impact analysis when implementing regulations, agency actions
and policies that might impact private property.
My understanding is that the Attorney General has a special role
in implementing the Executive order. The Department of Justice
has prepared guidelines for the Executive order's implementation
and oversees the implementation process. In this way, Federal
agencies must think twice before private property rights are in-
fringed.
Now, I have heard that Executive Order 12630 is a, quote, "dead
letter," unquote. It is simply not being enforced. Is that your opin-
ion, or is that true?
Ms. Schiffer. Senator Hatch, I think that the takings Executive
order is a very important Executive order. It mostly affects agen-
cies that are regulation-writing agencies and action kinds of agen-
cies, and my understanding is that it is being followed.
Senator Hatch. Then if that is not true, can you give me con-
crete recent examples where the Department or Federal agencies
225
have implemented the Executive order dealing with takings? For
instance, has the Department reviewed any agency TIA's or its own
actions that have implicated the Takings Clause in the last 2
years?
Ms. Schiffer. Senator Hatch, that is not something that, to my
knowledge, would be within the ambit of the Environment and
Natural Resources Division responsibility. So while I think that
carrying out that Executive order is important, it simply wouldn't
come across my desk.
Senator Hatch. Do you think the Executive order on takings
should be repealed or do you think it is a good idea?
Ms. Schiffer. I believe the Administration is committed to hav-
ing an Executive order on takings.
Senator Hatch. In that form or in some other form?
Ms. Schiffer. I am just not certain.
Senator Hatch. I would like to ask you several questions on two
recent Supreme Court cases and the Department's and your Divi-
sion's position as to their meaning or implementation.
In tne Lucas v. South Carolina Coastal Council case — that was
back in 1992— the Court held that a regulatory taking occurs and
compensation is required when the regulation, quote, "does not
substantially advance a legitimate State interest," unquote. The
Court also held that no public purpose or legitimate State interest
could justify a regulatory taking if the regulation physically appro-
priates or seizes property or denies an owner of all economically
beneficial use of the owner's property.
One issue left open by the Court, as I view it, in Lucas is
whether property owners should be compensated for, quote, "par-
tial," unquote, takings; that is, where regulation leaves some eco-
nomically beneficial use of the property. The Federal Circuit, in
Florida Rock Industries Inc. v. United States, in 1994, took the po-
sition that property owners should be compensated for partial
takings and developed a balancing test to determine when partial
takings exist.
Is it your view that the government is obligated to compensate
owners in such situations? Has the Department taken a stand on
this issue, for instance, and if it has, what is it and what types of
standards have been developed to distinguish between mere dimi-
nutions in value of property which would not require compensation
and partial takings of property which would?
Ms. Schiffer. Senator Hatch, as you know, takings law is a very
complicated and difficult and evolving area.
Senator Hatch. Yes, it is.
Ms. Schiffer. And you are raising questions about specific cases,
some of which are still in litigation, and so it is difficult for me to
address particular positions. What I can certainly commit to you is
that I am quite pleased to be working with you on the general pol-
icy issues related to takings, while respecting the fact that the posi-
tions that we take in particular lawsuits, of course, are something
that really are apart from what we might discuss.
Senator Hatch. But do you believe that there should be com-
pensation for partial takings, as well as total takings?
Ms. Schiffer. I think the question of what is a taking is one
which is difficult to address and is an evolving area of the law. As
226
I indicated, I would be pleased to hear your views about it and
pleased to work with you on the general policy question.
Senator Hatch. Well, thank you. We appreciate it because my
view is that partial takings ought to be compensated for, too, and
that needs to be defined and it needs to be defined well.
The other major Supreme Court case that constitutes the
Takings Clause of the fifth amendment was just recently decided
and, of course, that is Dolan v. City of Tigart. In Dolan, the Court
looked to the law of, quote, "unconstitutional conditions," unquote,
and reaffirmed the basic right that government may not require a
person to surrender a constitutional right — here, just compensa-
tion, when 10 percent of the Dolan's property was taken for the
public use of creating a bicycle path and an improved drainage sys-
tem— in exchange for a discretionary benefit conferred by the gov-
ernment where the property sought has little or no relation to the
benefit.
Now, to determine if an unconstitutional condition occurred, the
Court first inquired whether there exists a, quote, "substantial re-
lationship," unquote, between the conditions imposed by the permit
and a legitimate government interest. The Court next inquired
whether there was some kind of factual showing to demonstrate a
harm that would justify the government's restriction on private
property. There must be, according to the Court, a, quote, "rough
proportionality," unquote, between the denial of a permit and the
individualized harm the applicant would cause if the permit was
granted.
Significantly, the Court put the burden on the government of
concretely demonstrating that granting the applicant a permit
would cause harm to the public. Now, my understanding is that
this works a major change in the law. In your view, exactly how
does Dolan change the way environmental law will be enforced,
and maybe I could add what steps does the Department intend to
take to implement the Dolan decision?
Ms. Schiffer. Senator, the Dolan decision is a new ruling of the
Supreme Court and we will follow the Dolan ruling just as we
would follow other decisions of the Supreme Court in looking at
and briefing cases.
Senator Hatch. So you don't know what you are going to do with
regard to it at this particular point?
Ms. Schiffer. What we will do is look at the Dolan case as au-
thority, just as we would look at any other Supreme Court case as
authority, and determine whether it affects the positions that we
are taking in any cases.
Senator Hatch. Is the Department guiding any of the Federal
agencies with respect to Dolan and what has happened there?
Ms. Schiffer. We have had one meeting to discuss what effect
Dolan might have on cases of other agencies. That is what we have
done so far.
Senator Hatch. Do you believe that Executive Order 12630 will
be modified to reflect the Lucas and Dolan decisions?
Ms. Schiffer. I simply don't know about that.
Senator Hatch. Among the important developments in the past
year regarding the Environmental Crimes Section at the Justice
Department has been the release of two internal reports, one in
227
March and one in April 1994. Could you describe for us how and
why these reviews were done and your involvement in them?
Ms. Schiffer. Certainly. Long before I got back to the Depart-
ment, questions had been raised about how the Environmental
Crimes Section had handled certain criminal cases that were closed
caSes — that is, they were cases I had nothing to do with — and to
take a look at them. The Attorney General determined that inter-
nal reviews should be done.
One internal review was set up to look particularly at six cases
and, more broadly, at the operation of the Section, and another in-
ternal review was set up to look at a particular case, the Rocky
Flats case. .
As to the first internal review to look at six cases and the Divi-
sion more broadly, I really had nothing to do with that review. It
was a review that was conducted by career prosecutors in the De-
partment. They took a very detailed and thorough look both at the
six cases and at management in the section, and they issued a re-
port in March 1994 which is a thorough and detailed analysis,
which I have read, but which I had nothing to do with the writing
of.
As to the Rocky Flats internal review, as I responded before, that
was a review that when I first came back to the Department I was
asked to work on. I did work on it for some time. When I was
named to be head of the Division, I was taken off of that because
I had more work than I could do, and it was given to other people
who completed that report, so that I really had nothing to do with
the final work product of that report.
Senator Hatch. Senator Leahy has said that I can continue
these questions even though I have gone on for quite a while here.
He said as long as I don't ask anything dumb, and I can't
Senator Leahy. I whispered that part. You weren't supposed to
repeat it.
Ms. Schiffer. Well, I would never say you had done that, Sen-
ator.
Senator Hatch. Naturally, being a Republican, I cant quite
guarantee that. [Laughter.]
Senator Leahy. Senator Hatch and I have gone through this Al-
phonse Gaston routine for so many years, we are about to patent
it if we could figure out how to do it.
Senator Hatch. Well, that is right.
Let me just proceed. You are doing fine. You are not giving us
a lot of definitive answers. [Laughter.]
Senator Leahy. And that is all right. [Laughter.]
Senator Hatch. That is typical of Democrats, is all I can say.
Senator Leahy. We just want them warm and fuzzy.
Senator Hatch. That is right.
Senator Leahy. Provided these crimes are prosecuted, I might
say.
Senator Hatch. I want you to know that I have liked you from
the beginning, so don't worry about it. [Laughter.]
The 325-page report on the internal review of the environmental
crimes program dated March 10, 1994, states the following:
We have found that accusations of prosecutorial misconduct arise in largest meas-
ure from innuendo and unsubstantiated suspicions. We have found no evidence to
228
substantiate the allegations that Justice Department officials or employees relied on
improper criteria in prosecuting or declining to prosecute environmental crime
cases. To be sure, the Department's environmental crimes program can be improved,
and we provide some recommendations in that regard. But the most formidable
challenge currently facing the Justice Department is one that should not exist at
all. As a result of unfounded accusations. Department attorneys must exercise pros-
ecutorial discretion in the atmosphere of distrust. The Department's environmental
crimes program will not function effectively unless the ECS can dispel that distrust
and build cooperative working relationships with all of its partners in the environ-
mental enforcement effort.
Now, do you agree with that assessment?
Ms. SCHIFFER. I agree that it is very important that all of us in
the main Justice Department have good working partnerships with
others who are involved in environmental criminal enforcement,
and I believe I have already outlined a number of steps that I have
taken to see that that happens.
Senator Hatch. Among the conclusions in the April report was
the following:
The Department of Justice has an obligation to protect its line attorneys, particu-
larly where there are no credible allegations of misconduct. Such support is even
more appropriate where every critical decision was made with concurrence at the
highest levels of the Department.
That is a memorandum of April 8, 1994, to Associate Attorney Gen-
eral Webster Hubbell from Mark H. Dubester.
Do you agree or disagree with that statement?
Ms. Schiffer. I agree that it is very important that the Depart-
ment supervise its line attorneys, and then, if the line attorneys
are doing what their supervisors think is right, that it stands be-
hind them.
Senator Hatch. I really agree with that. I think you have to do
that. What, if anything, have you done to address those concerns,
or intend to do?
Ms. Schiffer. Senator Hatch, I have made as clear as I know
how to the lawyers in the Division that if they let me know what
they are doing and I concur with it and then they go do it that we
will stand behind them, and I think I have made that clear.
Senator Hatch. That is important. Go ahead. I didn't mean to
cut you off.
Ms. Schiffer. That is my response.
Senator Hatch. After concerns had been raised concerning the
handling of certain cases in the Environmental Crimes Section, an
internal review conducted by the Justice Department exonerated
that section, and I have previously referred to that report. Have
you endorsed and adopted the findings of the report on that inter-
nal investigation, and were you ordered to do so by the Attorney
General?
Ms. Schiffer. There is misinformation about what the Attorney
General ordered me to do, and she never ordered me to do anything
in this regard. There were really two separate parts of that report,
a part related to six cases and then a part about management.
As to the part about the six cases, those were cases that were
handled before I got to the Division and were closed before it. I had
no personal knowledge of those cases. I think the report, which was
done by career prosecutors, was very thorough and detailed, and I
have no reason to question its findings as to the six cases and so
I adopt those findings.
229
As to the management part of the report, where I have personal
knowledge, I think it was a thorough job. I agree with some of the
conclusions and disagree with others of them.
Senator Hatch. Now, it has been reported that an internal
memo written by 18 staff trial lawyers at the Environmental
Crimes Section expressed the opinion to the Attorney General that
"It is wrong for the Department of Justice to remain silent while
the reputations and efforts of Department attorneys are smeared
by Congress and in the press." Do you agree with that judgment?
Ms. Schiffer. I believe the Attorney General has issued a state-
ment after those internal reviews making clear that she thinks
that those internal reviews put the past behind us and that she
supports the line attorneys in the Division.
Senator Hatch. I think what it comes down to, basically, is this.
You know, I have been very concerned that we up here have cer-
tain rights to obtain certain things, but there are certain lines that
have to be drawn, too. If the line attorneys are not protected in
their right to make the appropriate decisions here, or if thev can
be badgered or influenced unduly by Members of Congress, that is
not a good situation.
I think you have to stand behind those line attorneys even if it
means refusing to cooperate with somebody who may have tremen-
dous power up here, and that even includes Senator Leahy.
Senator Leahy. I would hope that the Senator doesn't include
himself because it would go quite contrary to the position he took
when he was on the majority side here in this committee.
I would put in the record at this point the Congressional Re-
search Service review of legal and historical precedents regarding
oversight of the Department of Justice during the past 70 years>V
It goes into numerous, numerous instances where committees like
ours obtained internal documents from the Department in a variety
of circumstances in which we interviewed informally and formally
subordinate Department of Justice employees — FBI agents, line at-
torneys, and others.
It notes that the U.S. Supreme Court has specifically ruled that
congressional investigations of the Justice Department, including
investigations of whether the Department is failing to pursue meri-
torious cases, are constitutionally proper activity.
Senator Hatch. I don't disagree with that.
Senator Leahy. We also conducted in this committee an impor-
tant investigation of the Public Integrity Section of the Justice De-
partment in 1980-81, when all of us, including Senator Hatch and
myself, insisted on reviewing internal Justice Department docu-
ments and interviewing Justice line attorneys.
I recall one quote from that very clearly — and I just want to
make sure that we don't have an inconsistent quote today — one
that stuck in my mind so much that I wrote it down at the time,
which was the Judiciary Committee has a right under our constitu-
tional system of checks and balances to oversee the Department of
Justice and determine that they are doing their job responsibly and
effectively.
\J/See hearing before the Subcommittee on Oversight and Investigations of the Committee on
Energy and Commerce, House of Representatives, 103d Cong., 1st sess., Nov. 3, 1993: EPA's
Criminal Enforcement Program, pp. 12-41.
230
I thought Senator Hatch was right when he said that back about
12, 13 years ago, and I am sure he must feel that way today.
Senator Hatch. As naive as I was then, I would still reaffirm
that right. I think that we do have a right to do this, but I think
there are limits to that right, too, and especially in ongoing litiga-
tion and in certain other areas. So I think it is important, and the
purpose of my questions is to
Senator Leahy. I would just note that no such limit was indi-
cated by the Senator from Utah or anybody else at that time.
Senator Hatch. Well, I could have given you instances then
where I believe it would have been highly improper for even Con-
gress, with all of its August power, to demand certain things of the
executive branch of government. There are appropriate instances
where especially in the prosecutorial section, whether civil or crimi-
nal, where Members of Congress are not entitled to some of the in-
formation.
Senator Leahy. And nobody disagrees with that.
Senator Hatch. No. I agree, and I think that there need to be
the appropriate lines drawn, and there was concern in some of
these cases that some of these line attorneys were not being backed
up by the Department, and I think properly so.
I think you have to determine what the lines are, but then we
have to know what they are, and we may differ; we may disagree
with that. Then it comes down to a head-butting situation where
one side or the other is either going to give in or we are going to
fight it out in the courts. But there are certain lines that have to
be drawn in these areas.
I am not finding particular fault with anybody who has de-
manded materials. It is just a matter of concern, and that is why
we are bringing it. We know that there were some people who were
very upset and felt they weren't backed by the Justice Department
in areas where they should have been. Now, that is a determina-
tion that has to be made by you and I just want you to be aware
that there are those up here who are very concerned about it, in-
cluding myself.
Ms. Schiffer. Senator Hatch, I appreciate your views. It is my
view that I am very, very concerned about interviews of line attor-
neys and I think that there is an important oversight function by
Congress, but there is also an important need to be sure that gov-
ernment enforcement, and particularly criminal enforcement, is
done in an even-handed and impartial way, and seems even-
handed and impartial.
To that end, I think that it is only in the most exceptional cir-
cumstances that line attorneys should be subject to interviews. I
think it is perfectly appropriate to talk to or interview the political
appointees or supervisors about policy matters.
Senator Hatch. Well, I agree with that and I think it is a good
statement. Frankly, I am glad to have this hearing occur and I am
sorry you have been delayed as long as you have. I just want to
apologize to you if there has been any delay that you feel was inap-
propriate under the circumstances, but I am really happy to have
you here and intend to support you.
Ms. Schiffer. Thank you, Senator Hatch.
231
Senator Leahy. I must say I totally agree with your statement
that you just made on that. I have been at both ends of this, both
as a member of a congressional panel looking into this and prior
to that as a prosecutor, and I think that there are certain areas,
especially in ongoing matters, where the prosecution has to be left
to itself, with the normal checks and balances that we have within
our court system, and not with interference which may be seen as
attempts to influence the outcome by congressional or other execu-
tive branch people.
At the same time, there are, of course, things that are within the
proper oversight capacity of the appropriate committees in the Con-
gress, and that is why I put that review in the record.
Well, thank you very much, and I appreciate your being here. We
may have some other questions for the record and I will keep the
record open for the rest of today for that. I will urge the chairman
of the full committee to move forward with this as soon as possible.
Ms. Schiffer. Thank you.
Senator Leahy. Thank you.
We stand adjourned.
[Whereupon, at 10:29 a.m., the committee was adjourned.]
[Submissions for the record follow:]
232
SUBMISSIONS FOR THE RECORD
I. Biographical Information (Public)
1. Full name (include any former names used) :
Lois Jane Schiffer
2. Address: List current place of residence and office
address (es) .
Residence: 4640 Brandywine Street, N.W.
Washington, D.C. 20016
Office: Environment and Natural Resources Division
U.S. Department of Justice
10th Street and Constitution Avenue, N.W.
Washington, D.C. 20530
3. Date and place of birth:
February 22, 1945; Washington, D.C.
4. Marital Status (include maiden name of wife, or husband's
name) . List spouse's occupation, employer's name and business
address (es) .
Single.
5. Education: List each college and law school you have
attended, including dates of attendance, degrees received, and
dates degrees were granted.
a. Radcliffe College, Cambridge, Massachusetts. Attended
September 1962 - June 1966; A.B. magna cum laude degree,
granted June 1966.
b. Harvard Law School, Cambridge, Massachusetts. Attended
September 1966 - June 1969; J.D. cum laude degree, granted
June 1969.
c. Also attended: University of California at Berkeley,
Summer 1965; Oberlin College Summer program in France,
Summer 1963.
6. Employment Record: List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or
employee since graduation from college.
July 1993 - present: Special Assistant to Attorney General
(July-August 1993), Deputy Assistant Attorney General (August-
September 1993) and Acting Assistant Attorney General (September
233
27-present) , Environment and Natural Resources Division, U.S.
Department of Justice, Washington, D.C.
October 1989 - July 1993: Partner, Nussbaum & Wald,
Washington, D.C. (law firm).
January 1986 - present: Adjunct professor of environmental
law, Georgetown University Law Center, Washington, D.C.
June 1984 - September 1989: General Counsel and Secretary
to the Board of Directors, National Public Radio, Washington,
D.C. (non-profit corporation).
January 1978 - June 1984: Chief, General Litigation Section
(1978-1981) and Special Litigation Counsel (1981-1984), Land and
Natural Resources Division, U.S. Department of Justice,
Washington, D.C.
January 1974 - January 1978: Staff Attorney, Center for Law
and Social Policy, Washington, D.C. (public interest law firm).
September 1971 - January 1974: Associate, Leva, Hawes,
Symington, Martin & Oppenheimer, Washington, D.C. (law firm).
August 1971: Consultant to Ford Foundation Project on
Corporate Responsibility, Washington, D.C.
June 1970 - July 1971: Court Law Clerk, U.S. Court of
Appeals for District of Columbia Circuit, Washington, D.C.
September 1969 - May 1970: Staff Attorney, Boston Legal
Assistance Project, Boston, Massachusetts (legal services
office) .
Summer 1968 - Summer Associate, Kaye, Scholer, Fierman,
Hayes and Handler, New York, N.Y. (law firm).
Summer 1967 - Summer Intern, NAACP Legal Defense Fund,
Jackson, Mississippi.
Summer 1966 - Summer Intern, Office of Economic Opportunity,
Washington, D.C. (government agency) .
Other Board Memberships: I have been on the Boards of
Directors of the following organizations: Washington Council of
Lawyers (approx. 1972-1984); Women's Legal Defense Fund (approx.
1975-1987); District of Columbia Bar (1979-1989); American Civil
Liberties Union of the National Capital Area (1982-1993);
National American Civil Liberties Union (1991-1993); American
Rivers (1991-1993); Frederick B. Abramson Memorial Foundation
(1992-present) .
234
7. Military Service: Have you had any military service? If so,
give particulars, including the dates, branch of service, rank or
rate, serial number and type of discharge received.
No.
8. Honors and Awards: List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
General Mills Scholarship (Award, Third Place National
Winner, Betty Crocker Search for Future Homemaker of Tomorrow) .
Phi Beta Kappa.
Mothers and Daughters of Extraordinary Achievement Award
(National Women's Law Center, Washington, D.C.), 1991.
Fellow, American Bar Foundation
Department of Justice Outstanding Performance Rating (1979-
1983) .
9. Par Associations: List all bar associations, legal or
judicial-related committees or conferences of which you are or
have been a member and give the titles and dates of any offices
which you have held in such groups.
District of Columbia Bar, Member 1972 to Present: Member,
Board of Governors (1979-1989); Member of the following
committees of the D.C. Bar — Committee on Criminal Law and
Individual Rights (Steering Committee, approx. 1976-1978) ;
Nominating Committee (1976-1977); Friedman Committee to Review
the Disciplinary System (approx. 1982-1983) ; Liaison to Section
on Environmental Law (approx. 1985-1989) ; Budget Committee
(approx. 1983) ; Section on Administrative Law (approx. 1980-
present) ; Section on Environmental Law (approx. 1980-present) .
Advisory Committee on Procedures, United States Court of
Appeals for the District of Columbia Circuit (approx. 1985 -
1990) .
Member, Judicial Conference for the District of Columbia
Circuit (most years since 1976) .
Member, Judicial Conference for District of Columbia (local)
Courts (approx. 1982) .
American Bar Association (approx. 1974-present) : Member of
Steering Committee, Forum Committee on Communications Law
(approx. 1987-1989); Chair, Sub-committee on the Environment,
Section on Individual Rights and Responsibilities (approx. 1983-
- 3 -
235
1984); Member, ABA Section on Individual Rights (1970's-present) ,
Section on Natural Resources (1980's-present) , Section on
Administrative Law (1980's-present) .
District of Columbia Judicial Selection Commission (1977-
1978) .
Member, District of Columbia Federal Courts Committee on
Gender Bias (1993-1994).
Member, Massachusetts Bar since December 1969.
D.C. Bar Foundation Advisory Committee (1992-present) .
10. Other Memberships; List all organizations to which you
belong that are active in lobbying before public bodies. Please
list all other organizations to which you belong.
Organizations that lobby: American Rivers; American Civil
Liberties Union, American Civil Liberties Union of the National
Capital Area, Women's Legal Defense Fund, National Women's Law
Center, Sierra Club, Wilderness Society, American Bar
Association.
Other organizations: Washington Council of Lawyers,
Washington Area Lawyers for the Arts, American Arbitration
Association National Panel of Arbitrators, Fellows of the
American Bar Foundation, Executive Women in Government, Women's
Council on Energy & the Environment, WAMU Community Advisory
Board, WETA (money contribution only) , Land and Water
Conservation Fund.
Upon confirmation, I will resign from organizations that
lobby.
11. Court Admission: List all courts in which you have been
admitted to practice, with dates of admission and lapses if any
such memberships lapsed. Please explain the reason for any lapse
of membership. Give the same information for administrative
bodies which require special admission to practice.
a. Court Admissions:
United States District Court for the District of
Columbia, 1971.
District of Columbia Court of Appeals (also covers
Superior Court for District of Columbia) (year unknown; at some
time around 1980, admittants to U.S. District Court for District
of Columbia were automatically admitted to this Court) .
4 -
236
Court of Appeals for District of Columbia Circuit (year
unknown) .
Court of Appeals for Tenth Circuit (approx. 1983).
Court of Federal Claims (formerly Court of Claims) (approx.
1979) .
Supreme Court of United States (1973).
b. Bar Admissions:
District of Columbia, June 1971.
Massachusetts, December 1969.
12. Published Writings: List the titles, publishers, and dates
of books articles, reports, or other published material you have
written or edited. Please supply one copy of all published
material not readily available to the Committee. Also, please
supply a copy of all speeches by you on issues involving
constitutional law or legal policy. If there were press reports
about the speech, and they are readily available to you, please
supply them.
a. Articles (2 copies attached in Binders at Tab 1) .
'The Progeny of Geduldia v. Aiello: Can Employers Really
Assume Pregnancy is Unrelated to Sex?," 1 Employee Relations Law
Journal 41 (1975) .
"Overcoming Segregation and Discrimination", Title IX and
Other Laws Governing Sex Discrimination in Education. Editors
Charles D. Moody, Sr. and Charles B. Vergon, Program for
Educational Opportunity, The University of Michigan (1977).
"The FCC, the Congress and Indecency on the Air,"
Communications Lawyer, Winter 1990 (with Timothy B. Dyk) .
"Political Booknotes," (Unequal Protection: Women,
Children, and the Elderly in Court), The Washington Monthly, May
1991.
"Legal Issues Regarding Sex Bias in the Selection and Use of
Career Interest Inventories," Sex-Fair Interest Measurement:
Research and Implications. The National Institute of Education,
U.S. Department of health, Education and Welfare.
- 5
237
b. Speeches (2 copies attached in Binders at Tab 2) and
Lectures (2 copies attached in Binders at Tab 3) .
I have attached speeches which I have in writing. I have
also attached outlines of course lectures. I have given a number
of "remarks* for which I do not have written records or
materials.
13. Health: What is the present state of your health? List the
date of your last physical examination.
Present state of health is excellent. Last physical
examination: March 1993.
14. Public Office: State (chronologically) any public offices
you have held, other than judicial offices, including the terms
of service and whether such positions were elected or appointed.
State (chronologically) any unsuccessful candidacies for elective
public office.
None.
15. Legal Career:
a. Describe chronologically your law practice and experience
after graduation from law school including:
1. whether you served as clerk to a judge, and if so,
the name of the judge, the court, and the dates of the period you
were a clerk;
2. whether you practiced alone, and if so, the
addresses and dates;
3. the dates, names and addresses of law firms or
offices, companies or governmental agencies with which you have
been connected, and the nature of your connection with each;
b. 1. What has been the general character of your law
practice, dividing it into periods with dates if its character
has changed over the years?
2. Describe your typical former clients, and mention
the areas, if any, in which you have specialized.
c. 1. Did you appear in court freguently, occasionally, or
not at all? If the freguency of your appearances in court
varied, describe each such variance, giving dates.
2. What percentage of these appearances was in:
(a) federal courts;
(b) state courts of record;
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238
(c) other courts.
3. What percentage of your litigation was:
(a) civil;
(b) criminal.
4 . State the number of cases in courts of record you
tried to verdict or judgment (rather than settled) , indicating
whether you were sole counsel, chief counsel, or associate
counsel.
5. What percentage of these trials was:
(a) jury;
(b) non-jury.
Answer:
a.
1. June 1970 - July 1971: Court Law Clerk, District of
Columbia Circuit, 3rd and Constitution Avenue, N.W., Washington,
D.C. 20001. I was a motions law clerk, working for all the
judges on the Court on motions matters. The judges of the
District of Columbia Circuit at that time were: Judge Bazelon,
Judge Wright, Judge Spottwood Robinson, Judge Leventhal, Judge
McGowan, Judge Tamm, Judge Robb, Judge McKinnon, and Judge
Wilkey. Senior Judge Fahy also supervised the Court Law Clerks.
2. I have not practiced law alone.
3. (a) 1969-1970: Staff lawyer as a Reginald Heber Smith
Fellow, Boston Legal Assistance Project, 80 State Street, Boston,
Massachusetts. Worked as a staff attorney in an office providing
legal services to the poor. I handled welfare and housing test
cases. My clients were poor individuals and organizations who
represented the poor.
(b) 1971-1974: Associate, Leva, Hawes, Symington,
Martin & Oppenheimer, 815 Connecticut Avenue, N.W., Washington,
D.C. 20006 (this law firm no longer exists; some of its members
are now lawyers at Swidler & Berlin in Washington, D.C). I
worked on litigation and federal administrative agency practice
matters. Clients were generally business and non-profit
corporations.
(c) 1974-1978: Lawyer, Center for Law and Social Policy
Women's Rights Project, 1751 N Street, N.W., Washington, D.C,
20036 (the Project was the predecessor to the National Women's
Law Center, 1616 P Street, N.W., Washington, D.C). At this
public interest law firm, 1 handled litigation, administrative
agency matters, and coordinated with a number of other
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239
organizations to address the interests of women, particularly in
the areas of education, health, and insurance. Clients were
women's groups and individual women.
(d) 1978-1984: Chief, General Litigation Section (1978-
1981) and Special Litigation Counsel (1981-1984), Land and
Natural Resources Division (now Environment and Natural Resources
Division), U.S. Department of Justice, 10th and Constitution
Avenue, N.W. , Washington, D.C. 20530. As Chief of the General
Litigation Section, I was responsible- for managing the Section
and supervising the Section's handling of approximately 2000
cases at one time arising under over 70 federal statutes,
including cases under the Surface Mining Act, National
Environmental Policy Act, Federal Land Policy Management Act,
Alaska National Interest Lands Conservation Act and water
adjudications, takings cases, and mining and mineral leasing
cases. As Special Litigation Counsel, I handled complex
litigation on behalf of the United States and its agencies,
including a major Superfund case and a takings case in which
people from the Marshall Islands sought compensation for loss of
land arising from nuclear testing in the 1940 's and 1950's. Sole
client was the United States (through its myriad federal
agencies) , and I handled or supervised litigation on behalf of
almost every federal agency.
(e) 1984-1989: General Counsel, National Public Radio,
2025 M Street, N.W. Washington, D.C. 20036. As General Counsel
for National Public Radio, an organization with 350 member
stations and approximately 3 50 employees, I handled a range of
matters, including employment, copyright, trademark, corporate,
non-profit tax, libel issues, insurance and general management
issues, presentation of member station interests at the FCC, and
Copyright Royalty Tribunal matters. I also served as Secretary
to the Corporation and as parliamentarian at Board and Membership
meetings. Client was National Public Radio, a non-profit
corporation and membership organization that produces and
distributes radio programming, and represents the interests of
member stations.
(f) 1986-present: Adjunct Professor of Law, Georgetown
University Law Center, 600 New Jersey Avenue, N.W., Washington,
D.C. 20001. I have co-taught introductory environmental law one
semester a year for all but one of these years. My co-teacher is
Nancy Firestone, a judge at the Environmental Appeals Board,
Environmental Protection Agency, 605 14th Street, N.W.,
Washington, D.C.
(g) 1989-1993: Partner, Nussbaum & Wald, 1 Thomas
Circle, N.W. , Washington, D.C. 2005. I handled a major
insurance coverage lawsuit on behalf of Certain Underwriters in
the London Market (Lloyds of London) , and other matters on behalf
of individuals and business corporations, including counseling
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240
related to employment issues. I also handled a mayor lawsuit in
which a chemical company sought insurance coverage for hazardous
waste clean-ups.
(h) July 1993 - present: Special Assistant to the
Attorney General (July-August) , Deputy Assistant Attorney General
(August-September) and Acting Assistant Attorney General
(September 27 -present) , Environment and Natural Resources
Division, U.S. Department of Justice, 10th Street and
Constitution Avenue, N.W., Washington, D.C. 20530. I have
supervised and managed the work of the Division on behalf of
federal agencies. The Division's work includes cases on
pollution, natural resources and public lands, and Indians.
b.
1. and 2.: General character of law practice and typical
clients:
1969-1970: Legal services practice; I litigated test
cases on behalf of poor clients.
1971-1974 and 1989-1993: Private law firm commercial
law and federal agency practice, including litigation and
counseling. Clients were private companies with either
commercial interests or interests related to government actions,
and individuals with employment law-related problems.
1974-1977: Public interest practice related to women's
issues, particularly in the areas of education, health, and
insurance. Clients were women's organizations and individual
women.
1978-1984: Practice as a government lawyer, including
work as section supervisor. Clients were United States and
federal agencies. Practice was environmental law and litigation.
1984-1989: Practice as general counsel to non-profit
organization. General counsel work was wide-ranging, including
negotiation and work on contracts, copyright, employment,
corporate and tax law. Client was National Public Radio, a non-
profit membership corporation.
July 1993-present: Practice as Deputy Assistant
Attorney General, then as Acting Assistant Attorney General in
Environment and Natural Resources Division, U.S. Department of
Justice. Practice includes management and supervision of
environmental litigation and related policy.
I have specialized in environmental law and administrative
law, but have practiced in a number of additional areas.
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241
c.
1. During all periods except 1984-1989, I appeared in court
occasionally. During the 1984-1989 period, when I was at
National Public Radio, I appeared in court rarely.
2. During all periods except 1989-1993, my appearances have
been in federal court, and once or twice in Superior Court in the
District of Columbia. During the period 1989-1993, virtually all
of my court appearances were in state court in Delaware.
3. With the exception of several criminal appeals in the
1970 's, virtually all of my litigation experience has been civil.
Since September, 1993, I have supervised environmental criminal
cases in addition to a civil docket.
4. None. I have handled preliminary injunction and
temporary restraining order matters.
5. Not applicable.
16. Litigation: Describe the ten most significant litigated
matters which you personally handled. Give the citations, if the
cases were reported, and the docket number and date if
unreported. Give a capsule summary of the substance of each
case. Identify the party or parties whom you represented;
describe in detail the nature of your participation in the
litigation and the final disposition of the case. Also state as
to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or
judges before whom the case was litigated; and
(c) the individual name, addresses, and telephone numbers of
co-counsel and of principal counsel for each of the other
parties.
Answer.
1. United States v. Olin. and related cases, Civ. A. No. CV80-
PT-5300-NE (N.D. Alabama, Judge Propst) . For two years, from
1982 to June 1984, I represented the United States (including six
federal agencies) in this major Superfund case. Olin Corporation
had operated a plant in Alabama where it manufactured DDT from
the 1940's through 1971. Downstream from the plant was the
community of Triana, Alabama, a predominantly African-American
town of over 1000 residents. DDT from the plant had extensively
contaminated an area surrounding the plant and caused health
problems for the residents of Triana, as documented by the
Centers for Disease Control. The area adjoined an area managed
by the Tennessee Valley Authority, was near a military base
operated by the U.S. Army, and affected a wildlife refuge managed
by the Fish and Wildlife Service. The Environmental Protection
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242
Agency requested that the Justice Department sue the State of
Alabama, first under the Clean Water Act, and later, after the
Comprehensive Environmental Response, Compensation and Liability
Act ("CERCLA") was enacted, under CERCLA as well, to obtain
remediation of the site and other appropriate relief.
Eventually, the State of Alabama and the United States filed
separate actions against Olin to remediate the site and the cases
were consolidated. During the time I worked on the cases, as one
of two primary counsel for the United States, the cases were
assigned to Judge Propst.
In addition to these CERCLA actions, three different groups
of plaintiffs brought tort actions to recover for damages arising
from the DDT exposure. These groups were a large group of
residents of Triana, and two smaller groups of plaintiffs.
In the case, I helped craft a strategy for the United
States, briefed and argued motions, reviewed documents, took both
fact and expert witness depositions, and defended both fact and
expert witness depositions. I also worked extensively on
settlement. In December 1982, approximately two months before
trial, Judge Propst arranged for all parties, and where possible
some of their principals, to attend a settlement conference
conducted by another judge of his Court. That day, the parties
agreed to a complex settlement in principle, subject to approval
by their principals. I worked to have the settlement approved by
the affected federal agencies and spent four months negotiating
settlement documents with our clients and opposing parties. The
settlement included provisions for developing and implementing a
remediation plan, for health monitoring, and for payments to tort
plaintiffs. Reported decisions in the case are: 1981 WL 14903,
11 Envtl. L. Rep. 21,026 (N.D. Ala. Aug. 14, 1981) and 606 F.
Supp. 1201 (N.D.Ala. 1985) (a decision denying a collateral attack
on the consent decree; this decision describes the history of the
case) .
Counsel in the case, with current addresses, were:
Co-counsel:
Kenneth Reich
Day, Berry & Howard
260 Franklin Street, 21st floor
Boston, MA 02110
617-345-4600
David Batson
Environmental Protection Agency
401 N Street, N.W.
Washington, D.C. 20460
202-260-8173
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243
Elizabeth Todd Campbell
U.S. Magistrate
140 U.S. Courthouse
1729 5th Avenue N
Birmingham, AL 35203
205-731-0364
Henry Frohsin
Berkowitz, Lefkovitz, Isom & Kushner
1600 Southtrust Tower
Birmingham, AL 35203
205-328-0482
Counsel for Olin:
G. Lee Garrett
Jones, Day, Reavis & Pogue
303 Peachtree Street, N.E.
Atlanta, GA 30308-3242
404-521-3939
Trammell Vickery
Troutman Sanders
600 Peachtree Street, N.E.
Atlanta, GA 30308-2216
404-885-3000
Stuart Roth
Olin Corporation
120 Long Ridge Road
Stamford, CT 06904
203-356-2000
Charles Hatkins (deceased)
Myron Sokolowski (deceased)
Counsel for Triana Plaintiffs:
Robert Shields
Doffemeyer, Shields, Canfield & Knowles
13 55 Peachtree Street, N.E.
Atlanta, GA 30309
404-881-8900
(I cannot recollect lead counsel for the other two
plaintiff groups) .
2. In re Surface Mining Regulation Litigation. Civ. A. No. 78-
162 (D.D.C, Judge Flannery) . Reported decisions are at 452 F.
Supp. 327 (D.D.C. 1978) and 456 F. Supp. 1301 (D.D.C. 1978).
These decisions were affirmed in part and reversed in part at 627
F.2d 1346 (D.C. Cir. 1980).
- 12 -
244
Congress passed the Surface Mining Control and Reclamation
Act of 1977, 30 U.S.C. 1201 et. seq. The statute was a major
effort to regulate and repair the serious adverse environmental
consequences of strip mining. Because of the need for prompt
attention to the serious environmental and public health
problems, the statute provided that the Department of the
Interior was to promulgate interim regulations immediately, and
then eventually to issue final regulations. The Department of
Interior issued its interim regulations in early 1978. Industry
representatives immediately filed 22 lawsuits challenging the
regulations as unlawful. The challenges questioned many aspects
of the regulations, including technical provisions, and also
challenged the constitutionality of aspects of the regulatory
scheme. Environmental groups intervened on the side of the
government. The case was assigned to Judge Flannery in the
federal District Court for the District of Columbia.
As Chief of the General Litigation Section in the Lands
Division at the Department of Justice, I was one of the principal
lawyers handling this case. First, in response to extensive
interrogatories filed by the challengers, I filed what I believe
was the first motion to limit review to the administrative record
(such motions are new common in administrative practice) . The
success of that motion enabled us to focus on briefing extensive
summary judgment motions on specific challenges to myriad
provisions of the interim regulations. As Chief of the Section,
I also determined that the government would meet the deadlines in
an expedited briefing schedule. As one of several lead counsel
on the case, I organized the group of lawyers at the Department
of Justice and the Department of the Interior who worked on the
case, edited drafts of briefs, and worked with lawyers and
policy-makers from the Department of the Interior on the
government's position in the briefs. I argued portions of the
case, which was presented to the Court in two phases. The
government prevailed on most of the issues presented to the trial
judge and, thereby, we were successful in upholding most of the
new regulatory program. These victories were significant in
establishing the agency's authority under this important
environmental program.
Because of the large number of cases, there were numerous
counsel. To the best of my recollection, leading counsel in the
case, with current addresses, were:
Co-counsel:
Alfred Ghiorzi
Environment and Natural Resources Division
U.S. Department of Justice
10th Street & Constitution Avenue, N.W.
Washington, D.C. 20530
202-272-6959
- 13 -
245
David Cannon
PPG Industries, Inc.
1 PPG Place
Law Department
40 South
Pittsburgh, PA 15272
412-434-3131
Carol Lynn Green
Bryan , Cave
700 13th Street, N.W.
Washington, D.C. 20005-3960
202-508-6000
Michael McCord
Environmental Defense Section
Environment and Natural Resources Division
U.S. Department of Justice
10th Street and Constitution Avenue, N.W.
Washington, D.C. 20530
202-514-2219
Lead opposing counsel:
Robert Sayler
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20044
202-662-6000
Warner Gardner
Michael Greenberger
Shea & Gardner
1800 Massachusetts Avenue, N.W.
Washington, D.C. 20036
202-828-2000
John Macleod
Crowe 11 & Moring
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 1004-2595
202-624-2500
Counsel for intervenor environmental groups:
Thomas Galloway
1835 K Street, N.W.
Washington, D.C. 20006
202-833-9084
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246
Terence Thatcher
Deputy City Attorney
Portland, Oregon
503-823-4047
3. National Organization for Reform of Marijuana Laws (NORML) v.
Department of State. Civ. A. No. 78-0428 (reported decision at
452 F. Supp. 1226 (D.D.C. 1978), Judge Waddy) . NORML sued the
Department of State to seek a declaratory judgment that the
Department and other agencies must prepare an environmental
impact statement under the National Environmental Policy Act
("NEPA") before spraying herbicide on marijuana in Mexico. This
case raised the significant issue of whether NEPA applies to
actions of the United States which it takes abroad when the
impact occurs in the United States or abroad. The issue was, and
continues to be, one of interest throughout the government. I
worked with the Department of State, the Council on Environmental
Quality, and other federal agencies to assure that the
government's interests were protected. The Department of State
undertook an environmental review, and based on that undertaking,
the Court determined that the spraying could go forward. The
Court did not have to reach the guest ion of whether a full
Environmental Impact Statement was required.
Counsel in the case, with current addresses, were:
Co-counsel:
Irwin Schroeder
Federal Highway Administration
Clinton Avenue and North Pearl Street
Albany, NY 12207
518-471-6476
Lee Marks (formerly at the Department of
State)
Ginsburg, Feldman, & Bress
1250 Connecticut Avenue, N.W.
Washington, D.C. 20036
202-637-9050
Opposing Counsel:
Peter Meyers
(formerly with NORML
1001 Connecticut Avenue,
Washington, D.C. 20036
202-483-5500
current address unknown)
N.W.
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4. United States v. Sterling Patrick. No. 72-1481, 494 F.2d 1150
(D.C. Cir. 1974) (Judges Bazelon, Wisdom, and Richey) . Defendant
stabbed his foster mother to death in her home. He was taken to
the police station for questioning and stated that he had killed
her, but did not know how it happened. At trial, the defense
contended that as a result of taking LSD on the day of the
murder, the defendant lacked the requisite intent for first-
degree murder. The jury was instructed on the insanity defense,
and after deliberations asked the Court whether they could
recommend psychiatric treatment with a finding of second-degree
murder. The District Court Judge instructed the jury that it
could recommend such treatment. The defendant was convicted of
second-degree murder for killing his step-mother.
I was one of the court-appointed counsel on appeal. I
developed the theories and wrote the brief on appeal (the appeal
was argued by a partner in my law firm who was originally
appointed by the Court) . The Court of Appeals reversed the
conviction on the ground that it was improper for the trial judge
to instruct the jury that it could recommend psychiatric
treatment if it returned a guilty verdict in a case where the
sole issue was whether the defendant was criminally responsible.
Counsel in the case, with current addresses, were:
Co-counsel:
Marx Leva
Robins, Kaplan, Miller & Ciresi
1801 K Street, N.W.
Suite 1200
Washington, D.C. 20036
202-775-0725
Opposing counsel:
Julius Johnson
Department of Labor
3rd Street and Constitution Avenue, N.W.
Washington, D.C. 20210
202-633-0395
Judge John Terry (Supervisor in U.S.
Attorneys' Office)
District of Columbia Court of Appeals
500 Indiana Avenue, N.W.
Washington, D.C.
202-879-2780
5. Women's Equity Action League v. Mathews. Civ. A. No. 74-1720.
In this case, on behalf of a number of individual women and girls
and women's groups, we sought an order compelling the Secretary
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of Health, Education and Welfare ("HEW") to enforce Title IX of
the Civil Rights Act of 1970. That law requires schools that
receive federal funding not to discriminate on the basis of sex.
We also sought to have HEW and the Department of Labor enforce
Executive Order 11246 (amended by Executive Order 11375) for
colleges and universities with regard to sex discrimination.
These Orders require government agencies to require affirmative
action by government contractors. We filed the case in late
1974, and, as one of two primary co-counsel, I worked on the case
until January 1978, when I left the Center for Law and Social
Policy to work for the Department of Justice. The case was
litigated until 1990.
Originally the case was before Judge Waddy, of the United
States District Court for the District of Columbia. Thereafter,
the WEAL plaintiffs intervened in a related case, Adams v.
Richardson, pending before Judge Pratt and, when Judge Waddy
died, WEAL was transferred to Judge Pratt. The Adams plaintiffs
sought to have HEW enforce Title VI of the Civil Rights Act of
1970 with regard to race discrimination in schools and colleges
in 17 border and Southern states.
The WEAL case arose because HEW did not handle promptly
complaints that women and girls filed with HEW alleging that
their high schools and colleges, which received federal funds,
discriminated against them on the basis of sex. The WEAL
plaintiffs alleged that women were not promoted or were paid less
than men at the schools. In addition, HEW did not undertake
affirmative compliance reviews to find such discrimination,
whether or not complaints were filed. Similarly, the Department
of Labor did not enforce analogous provisions of the Executive
Orders against non-complying colleges and universities that
received government contracts. The suit sought an order
requiring HEW and the Department of Labor to handle complaints
promptly and to conduct compliance reviews. The case was to some
extent modeled on Adams v. Richardson.
The WEAL case proceeded slowly through the discovery phase.
During the course of discovery in WEAL, HEW sought modification
of an order requiring it to process complaints and conduct
compliance reviews for race discrimination that resulted after
rulings in Adams v. Richardson. HEW contended before Judge Pratt
in Adams that his order requiring enforcement of the race
discrimination law left HEW with no resources to address sex
discrimination complaints or national origin discrimination
complaints. We sought to intervene in Adams to protect the
interests of our clients, but Judge Pratt denied our motion.
Because we were concerned about the effect of a ruling on
remedies for our clients, and because we wanted to work with the
Adams plaintiffs to obtain a remedy that protected the rights of
all affected groups, I sought and obtained in the Court of
Appeals summary reversal of Judge Pratt's denial of intervention.
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Adams v. Mathews. 536 F.2d 417 (D.C. Cir. 1976) (Judges Wright,
Leventhal, and Robinson). The only other reported decision
during the time I worked on the case is Adams v. Califano. 430 F.
Supp. 118 (D.D.C. 1977) (granting further relief regarding HEW
enforcement to the Adams plaintiffs) .
Subsequently, HEW and, for the WEAL plaintiffs, the
Department of Labor, sought to negotiate a consent decree with
the Adams and the WEAL plaintiffs, as well as with plaintiffs
representing the Mexican American Legal Defense and Education
Fund ("MALDEF") . Of significance, all the groups and interests
worked together to assure the effective enforcement of the civil
rights laws. I worked extensively on the consent decree, which
was agreed to shortly before I left the case. The case has a
substantial subsequent history of reported decisions.
Counsel in the case, with current addresses, were:
Co-counsel:
Marcia Greenberger
National Women's Law Center
1616 P Street, N.W.
Washington, D.C. 20036
202-328-5160
Counsel for Adams plaintiffs:
Joseph Rauh (deceased)
Elliott Lichtman
Lichtman, Trister, Singer & Ross
1666 Connecticut Avenue, N.W.
Washington, D.C. 20009
202-328-1666
Counsel for MALDEF plaintiffs:
Stuart Land
Arnold & Porter
1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036-6885
202-872-6720
Opposing Counsel:
John Boese
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
202-639-7220
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250
David Anderson
Civil Division
U.S. Department of Justice
10th Street and Constitution Avenue, N.W.
Washington, D.C. 20530
202-514-3354
6. Monsanto v. Aetna. No. C.A. 88C-JA-118 (Superior Court for
New Castle County Delaware) . The case was filed in 1988; I began
working on it in October, 1989. A major chemical company had
engaged in remediation of hazardous wastes under Superfund and
other hazardous waste laws. Monsanto sought insurance coverage
for these remedial activities at 80 sites throughout the country.
Because the activity that caused the pollution that was being
remediated began in the 1940's, Monsanto sued all of the
insurance companies that had sold it comprehensive general
liability policies and pollution coverage policies from the
1940's to the 1980's (approximately 38 entities). Monsanto
sought a declaratory judgment that it was entitled to coverage.
That judgment could result in hundreds of millions of dollars in
payments from the insurance carriers to Monsanto.
I was one of several lawyers, both from my law firm in
Washington and other law firms in Delaware and Chicago,
representing Certain Underwriters at Lloyds, London and Certain
Companies in the London Market ("Lloyds"). I worked on the
litigation for a substantial amount of my time until July, 1993,
when I came to work at the Department of Justice (the case is
still pending) . During the time I worked on the case, a number
of rulings on discovery and related matters were issued by the
Court. After I left the case, during December 1993, the Court
issued a number of substantial summary judgment decisions. Those
decisions had the effect of deciding a number of claims against a
number of the parties. Trial is still required for a final
outcome to be determined, but the trial date of February, 1994
has been deferred.
During the years I worked on the case, I worked extensively
on discovery and issues relating to discovery, reviewed
documents, wrote motions, worked extensively on challenges to
plaintiff's privilege logs, and took a number of depositions of
fact witnesses. With lawyers representing several other major
insurers in the case, I played a major coordinator role among
defense counsel. I argued a number of motions before the Special
Discovery Master, Harvey Rubenstein, and several motions before
judges in the case. During the years I worked on the case, it
was sequentially assigned to the following three judges: Judge
'artin, Judge Poppitti, and Judge Ridgley. A list of reported
decisions in the case is attached. (See Attachment A.) While
counsel for various parties changed through the course of the
litigation, attached is a list of London co-counsel and of
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principal counsel for other parties as of the date I left the
case in July 1993. (See Attachment B.)
7. Juda v. United States and related cases (Marshall Islands
cases) (United States Court of Claims) . In these major takings
cases, citizens of certain Marshall Islands sought compensation
for the United States government's alleged "taking* of their
lands because of its nuclear testing in the 1940's and 1950's.
At the time the cases were brought in 1981, the United States was
negotiating a new political status for the Marshall Islands,
which were under a United Nations trusteeship administered by the
United States. It was anticipated that the resulting status, a
Compact of Free Association, would provide for settlement of
claims, including these "takings" claims, by providing
significant compensation. The cases raised a series of difficult
questions, including the effect of a proposed Compact of Free
Association on the claims. Under a doctrine called "espousal,"
we argued that the new government could assume and extinguish the
claims of its citizens.
On behalf of the United States, I began work on these three
similar cases in 1982, and worked on them until I left the
Department of Justice in 1984. As lead counsel during the course
of my work on these cases, I formulated the government's
position, worked with a number of agencies, defended depositions,
and wrote a motion to dismiss. The motion to dismiss was
premised on the grounds that: the statute of limitations had run;
Tucker Act jurisdiction did not extend to these cases; the
"Sovereign Act" defense barred implied contract claims; the
implied contract claims were precluded; and Marshall Islanders
could not invoke the just compensation clause of the Fifth
Amendment. I worked closely with co-counsel and with lawyers
from the affected agencies. I argued two of the three related
motions to dismiss before Judge Harkins of the then Court of
Claims. We also sought to defer ruling on the cases until the
Compact of Free Association was concluded.
By a series of three opinions, Judge Harkins denied most
parts of the motions to dismiss. These denials are reported at:
Juda v. United States. 6 CI. Ct. 441 (1984); Peter v. United
States. 6 CI. Ct. 768 (1984); and Nitol v. United States. 7 C.
Ct. 405 (1985). Subsequently, after I left the cases, the Court
of Claims ruled that the Compact of Free Association did withdraw
Tucker Act jurisdiction. See Juda v. United States. 13 Ct. CI.
667 (1987); Nitol v. United States. 13 Ct. CI. 690 (1987); and
Peter v. United States. 13 Ct. CI. 691 (1987). These decisions
were People of Enewetak v. United States. 864 F.2d 134 (Fed. Cir.
1988), cert, denied. 491 U.S. 909 (1989).
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252
Counsel in the case, with current addresses, were:
Co-counsel (I worked particularly closely with) :
Wendy Jacobs
Foley, Hoag & Eliot
One Post Office Square
Boston, MA 02109
617-381-1390
Opposing counsel:
Jonathan Weisgall
1300 19th Street, N.W.
Suite 407
Washington, D.C. 20036
202-828-1378
David Anderson
369 Montezuma #239
Santa Fe, NM 87501
505-989-3771
William Camusi (deceased)
8. National Food Processors Association v. Klutznick. No. 81-
1239 (D.C. Cir.). 1 handled this case on appeal from a decision
of the United States District Court for the District of Columbia.
The case arose under the Fishery Conservation and Management Act
of 1976, a statute administered by the National Oceanic and
Atmospheric Administration (a part of the Department of
Commerce) . Under the statute, the Secretary issues and amends
fishery management plans for particular fisheries. Here, the
Secretary had amended a plan for clam and quahog fishing. The
plaintiff trade association challenged the plan on the ground
that reporting requirements in the original plan, not the part
that was amended, did not comply with the law. The District
Court ruled that plaintiffs were barred from challenging that
portion of the regulation because it was not repromulgated here,
and the statutory requirement that review of regulations had to
be filed within 30 days was not met as to the old portion of the
regulation. 507 F. Supp. 76 (D.D.C. 1981).
The trade association appealed to the D.C. Circuit in 1981.
I wrote the brief and argued the government's position as
appellee. The question was one of administrative law — if an
agency promulgates a regulation with several parts, and amended
one of the parts several years later, does the time for seeking
review run again as to the part that is not repromulgated. In an
unreported decision, the Court of Appeals affirmed. (Judges
Edwards, Markey, Mikva) .
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253
Counsel in the case, with current address, was:
Opposing Counsel:
Robert Sayler
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, DC 20044-7566
202-662-5382
9. Alaska v. Carter. 462 F. Supp. 1155 (D. Alaska 1978, Judge
Heydt) . This case was filed in the United States District Court
for the District of Alaska. Congress Passed the Alaska Native
Claims Settlement Act in 1971. The Act authorized the Secretary
of the Interior to withdraw from appropriation millions of acres
of land in Alaska needed to "protect the public interest,* (»d-2»
lands) and up to 80 million acres "suitable for addition to or
creation as" units of National Parks and other protected areas
("d-1 withdrawals") . Withdrawals under the "public interest"
provision expired on December 16, 1978. Millions of acres were
withdrawn under these authorities. The Secretary sought
legislation to protect these lands, but legislation had not
passed near the time of expiration of the »d-2" protection. The
Department of the Interior assembled a task force to consider
alternative protection for the lands to maintain the status guo
until Congress could act, and prepared a supplemental
Environmental Impact Statement ("EIS") . The draft supplemental
statement was released for public comment, and a shortened
comment period was specified. Thereafter, the Secretary
determined that an emergency existed and withdrew lands under the
Federal Land Policy and Management Act ("FLPMA") . The State of
Alaska filed land selections on 41 million acres.
The State of Alaska sued to challenge the shortened comment
period, and sought a preliminary injunction against the
foreshortened comment period. Since at least some of the
proposed actions to maintain the lands under protected status
could not be taken to protect the lands until the comment period
closed, and without the shortened period closure would occur
after expiration of the "d-2" withdrawals, the suit was
significant with respect to the protection of important Alaska
lands that the Secretary of the Interior referred to as the
country's "crown jewels." The Court determined that certain
protection undertaken, including those undertaken by the
President, did not require compliance with NEPA, and that to
construe NEPA otherwise would raise constitutional problems. It
also held that an emergency withdrawal under FLPMA does not
require NEPA compliance. Finally, the Court determined that the
shortened comment period for the supplemental EIS was undertaken
in compliance with guidelines of the Council on Environmental
Quality, and was therefore a responsible exercise of discretion.
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254
The Court denied the State's request for preliminary
injunction. Subsequently, Congress passed the Alaska National
Interest Lands Conservation Act ("ANILCA") which determined which
lands, as to which the status quo had been maintained, would
become national protected areas.
I acted as a supervisor on this case, discussing issues,
briefing and oral argument with the lawyers who handled the case
on a day-to-day basis.
Counsel in the case, with current addresses, were:
Counsel for the Government:
Steven Herman
Assistant Administrator for Enforcement
Environmental Protection Agency
401 M Street, S.W.
Washington, D.C.
202-260-5145
Kathryn Oberly
Ernst & Young
1200 19th Street, N.W.
Washington, D.C. 20036
202-327-9871
James Moorman
Cadwalader, Wickersham & Taft
13 3 3 New Hampshire Avenue, N.W.
Washington, D.C. 20036
202-862-2300
Acting Justice Alexander Bryner
Court of Appeals of the State of Alaska
303 K Street, 5th Floor
Anchorage, AK 99501
907-264-0751
Opposing Counsel:
Thomas Meachum
(no known address)
10. No Oilport v. Carter. 520 F. Supp. 334 (W.D. Wa. 1981, Judge
Belloni) . As Chief of the General Litigation Section, I became
involved in this case at its inception in approximately 1980
because of the importance of the project and the fact that the
President was sued. I participated in discussions about strategy
and briefing, and made one court appearance.
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255
In this case, three plaintiff groups — environmental groups,
a city and a county, and Indian tribes in the State of
Washington — sued President Carter, other federal officials, and
the Northern Tier Pipeline Company, to stop construction of a
proposed northern tier pipeline, which .would carry crude oil
across the northern tier states. The challenged actions were the
selection by President Carter of a route for the pipeline, and
the grant by the Secretary of the Interior of a right-of-way
permit for the pipeline. Challenges were filed under a number of
statutes, including the NEPA, the Public Utilities Regulatory
Policies Act, and the Mineral Leasing Act. In a lengthy opinion,
Judge Belloni ruled in favor of the defendants on almost all
issues. He also determined that, as to Indian treaty issues,
genuine issues of material fact required a trial.
Counsel in the case, with current addresses, were:
Co-counsel:
Andrew Walch
Environment and Natural Resources Division
U.S. Department of Justice
Suite 501, North Tower
999 18th Street
Denver, CO 80202
(303) 292-2320
Nancy Firestone
Environmental Protection Agency
401 M Street, S.W.
Washington, D.C.
202-501-7109
Counsel for Northern Tier Pipeline Co. defendant:
Robert Loeffler
Morrison & Foerster
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
202-887-1500
Counsel for No Oilport plaintiffs:
Craig Richie
Doherty, Doherty & Richie
Port Angeles, WA
(name from reported decision, I do not recall
counsel)
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256
Counsel for City of Port Angeles plaintiffs:
Craig Miller
City Attorney for Port Angeles
Port Angeles, WA
(name from reported decision, I do not recall
counsel)
Counsel for Indian Tribe plaintiffs:
Russell Busch
Evergreen Legal Services,
Native American Project
Seattle, WA
(name from reported decision, I do not recall
counsel)
Stephen Quesenberry
Skokomish Tribal Office
She 1 ton, WA
(name from reported decision, I do not recall
counsel)
Donald Means
Peter Wilke
Swinomish Tribal Community
Bellevue, WA
(name from reported decision, I do not recall
counsel)
Robert Wilson-Hoss
Sguaxin Island Tribe
Shelton, WA
(name from reported decision, I do not recall
counsel)
17. Legal Activities: Describe the most significant legal
activities you have pursued, including significant litigation
which did not progress to trial or legal matters that did not
involve litigation. Describe the nature of your participation.
In this guestion, please omit any information protected by the
attorney-client privilege (unless the privilege has been waived.)
a. Teaching. Since 1986, as an adjunct professor I have
taught introductory environmental law at Georgetown University
Law Center. The course, which I co-teach one semester a year
with a colleague, covers six basic statutes: National
Environmental Policy Act, Clean Water Act, Resource Conservation
and Recovery Act, Superfund, and Toxic Substances Control Act.
We use lectures, class participation, and problems, which the
students work on together, and evaluate and discuss during class,
to convey concepts and details of how the statutes work and how
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257
Congress and federal agencies work to control pollution. We
emphasize student participation in a friendly atmosphere. The
class has been successful in introducing a large number of
students, many of whom are now practitioners, to the importance
of this area of the law and the approaches that different
statutes take to the problem of pollution.
b. Budget . I have experience in developing budgets and
assuring that an organization operates within budget. As a
member of the Board of Governors of the District of Columbia Bar,
and as a member of its Budget Committee, I worked with Bar staff
to develop and evaluate an annual budget, I also assisted in
developing budgets at the American Civil Liberties Union ("ACLU")
and have reviewed and approved budgets at American Rivers. At
National Public Radio, senior management, including the General
Counsel were involved in developing annual budgets, having them
approved and adopted, and assuring that the organization worked
within the budget. As National Public Radio's General Counsel, I
gained experience in tracking expenditures and readjusting
budgets. At the Department of Justice I have also had a role in
the past six months working on budgets and budget forecasts for
upcoming fiscal years, and defending the Division's budget within
the Department and to the Office of Management and Budget.
c. Management experience. During the course of my career, I
have had experience managing employees and organizations,
caseloads, and cases. Both as Chief of the General Litigation
Section in the Lands Division at the Department of Justice, and
as General Counsel at National Public Radio, I was responsible
for managing a staff (approximately 50 people at the Justice
Department of Justice, and six people at National Public Radio),
including setting priorities, assuring quality of work, hiring,
dealing with personnel issues, supervising work, establishing a
management structure, and coordinating with other units within
the organizations and outside of the organizations. At National
Public Radio I was also responsible with other senior managers
for management of the entire organization and its representation
of 3 50 member stations.
I have also been responsible for managing caseloads,
including assuring that the 2000 cases in the General Litigation
Section were tracked, assigned, handled by either counsel in
Washington or in United States Attorneys' Offices, and presented
in a manner consistent with the policy of the affected client
agencies.
Finally, I have managed complex cases. That work has
included taking a leading role on a case steering committee
(Monsanto v. Aetna) , leading a team that handled extensive
briefing and argument in a regulatory case fin re Surface Mining
Litigation) . and organizing the United States' case, one of
several cases arising from the same incident of pollution where
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258
the other cases had over a thousand plaintiffs and where I
represented six government agencies (United States v. Olin and
related cases) .
d. Development of legal theories. Throughout the course of
my career, I have been involved in the development of legal
theories to solve problems and advocate positions. For example,
as Special Litigation Counsel at the Department of Justice, I
worked on two major cases under the Super fund law. In the
process of working on these cases, it became evident that the
government could develop a process that would permit agency
determination of the appropriate remedial action for hazardous
waste contamination after appropriate opportunity for notice and
comment by affected parties, and could then provide for review of
its decisions on an agency record, rather than de novo in a
court. This approach would save both time and money in the
process of clean-up of the nation's hazardous waste sites. This
theory became the basis for procedures enacted in the Superfund
Amendments and Reauthorization Act of 1986, and continues to
provide the procedure for agency decision and affected entity
review under the law.
e. Negotiations. I have had extensive experience
negotiating case settlements, commercial contracts, union
contracts, and consent decrees. I have trained as a mediator and
have mediated approximately twelve cases, most to successful
conclusion. I have also participated in a negotiated rulemaking
for Channel 6 Federal Communications Commission ("FCC") rules.
At National Public Radio, and on behalf of its 350 member
stations, I participated extensively in a negotiated rulemaking
that resulted in a proposed rule, eventually adopted by the FCC,
that resolved a longstanding issue. Stations that operate at low
FM frequencies may, at those frequencies, cause interference to
television Channel 6 stations that operate nearby. Because FM 88
to 92 frequencies are reserved for public radio, National Public
Radio stations were some of the stations that the Channel 6
interests were concerned about restricting. The FCC had issued a
proposed rule to balance those interests that was not
satisfactory to National Public Radio member stations. On behalf
of National Public Radio, I worked with in-house engineers to
develop a grid by which we could determine which restrictions
were more acceptable and which were less acceptable, then
participated in a negotiated rulemaking with Channel 6 interests
to develop a rule that balanced the restrictions in a manner more
acceptable to National Public Radio member stations. The
negotiated rule was finally adopted by the agency.
f. Ethics. I have always been committed to the highest
ethical standards for the practice of law. As one step to
further those ends, I served as vice-chair of a Committee to
Review the Disciplinary System of the D.C. Bar. The Committee
conducted extensive interviews, and wrote a report evaluating the
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259
strengths and weaknesses of the process and recommending changes.
A number of the changes were implemented.
II. Financial Data and Conflict of Interest ( Public)
1. List sources, amounts and dates of all anticipated receipts
from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive
from previous business relationships, professional services, form
memberships, former employers, clients, or customers. Please
describe the arrangements you have made to be compensated in the
future for any financial or business interest.
I am a participant in a TIAA/CREF Pension Plan to which
National Public Radio substantially contributed during the time
of my employment there. I expect no further contributions from
National Public Radio. In addition, I have an IRA plan and a SEP
plan. I have been the sole contributor to each of those deferred
income plans, and expect no contributions to those plans from
past employers.
2. Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in determining
these areas of concern. Identify the categories of litigation
and financial arrangements that are likely to present potential
conf licts-of-interest during your initial service in the position
to which you have been nominated.
I will seek and follow the advice of the Department of
Justice ethics officials before participating in any matter that
could affect my financial interest, and recuse myself or sell
stock to eliminate that conflict where necessary. Currently, the
only potential conflicts of interest I anticipate involve stock I
may own. I do not anticipate potential conflicts of interest
during my initial service in the position to which I have been
nominated.
3. Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during your
service in the position to which you have been nominated? If so,
explain.
I have been invited by Georgetown University Law Center to
continue, and I plan to continue, co-teaching a one-semester
course in environmental law at Georgetown University Law Center
in 1994 on an unpaid basis. I have no other plans, commitments,
or agreements to pursue outside employment during my service in
the position to which I have been nominated.
4. List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
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260
calendar year, including all salaries, fees, dividends, interest,
gifts, rents, royalties, patents, honoraria, and other items
exceeding $500 or more. (If you prefer to do so, copies of the
financial disclosure report, required by the Ethics in Government
Act of 1978, may be substituted here.)
A copy of the financial disclosure report required by the
Ethics in Government Act of 1978 is attached.
5. Please complete the attached financial net worth statement in
detail (Add schedules as called for) .
A typed version of the attached financial net worth
statement is attached.
6. Have you ever held a position or played a role in a political
campaign? If so, please identify the particulars of the
campaign, including the candidate, dates of the campaign, your
title and responsibilities.
I participated in the campaign for Clinton for President as
a member of a committee on environmental issues in 1992. Work on
this committee included drafting a memorandum on environmental
justice and attending meetings. I have not had titles or
assigned responsibilities in any campaign.
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261
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all assets (including ba
accounts, real estate, securities, trusts, investments, and other financial holdings) all liabilities (including deb
mortgages, loans, and other financial obligations) of yourself, your spouse, and other immediate members
your household.
ASSETS
UABIUTIES
Cain on hand and In banks
7^ •*--:
Notes payable to banks secured
Notes payable to bank*— unsecured
Notes payable to relatives
Notes payable to ottiers
Accounts snd bills due
Unpaid income ui
Other unpaid Ui snd Interest
Real estate mortgages payable— add'
schedule
Chattel mortgages snd other Uens
payable
Other debts — Itemlie:
U.S. Government securities— edd
<_
schedule
Listed ucuntln — edd schedule'
J ~3 .„ 1
^
_
Unlisted neuritis*— edd schedule
, .•
Accounts snd noun receivable:
Dus from relatives snd friends
i-
Dus from others
"> >.
Doubtful ,
*
fits' sststs ownsd — sdd schedule
i ' y , . -
f
Rssi nun mortgages reeeivsble
Autos snd othsr psrsonsl property
Cssn value— lift Insurance
^'
i i C -V -
I /Id/- m ' fU K-«-~.f fko *
l V -| ; i (.
1 /. A — J- 1 V- • l - . L /. u J
i v. ;
1 ' " "* 'i ■ i
\. r ... Uv. f ■ - .. ->■-)
,i»7
Total liabilities
Net worth
Total liabilities and net worth
"i / ••
':•:[ •■■'..
Toul esseti
'r-i ,-i.j:
') *' ■>"* . 1 -
CONTINGENT LIABILITIES
GENERAL INFORMATION
As endorser, comaker or guarantor
L
Are any assets pledged? (Add sched-
ule.)
/_
On leases or contracts
Legal Claims
V-
Are you defendsnt In any stilts or
legal actions? L
A
Prevision (er Teds.-:.' !ne=.-n« Tax
c
1
'-
Other speciel debt
29A
262
Net Worth -statement - Lois Schiffer. December 31. 1993
Schedule of Listed Securities:
Atlantic Energy - 800 shares - $17,000
Bear Stearns - 600 shares - $14,175
Capstead Mortgage - 300 shares - $12,000
FPL Group (IRA) - 400 shares - $14,800
General Mills - 32 shares - $1944
Handleman (IRA) - 1000 shares - $13,250
Legg Mason - 600 shares - $14,775
Liz Claiborne - 1500 shares - $33,188
Morgan Stanley - 200 shares - $14,775
Municipal Bond Unit Trust - 16 shares - FMV $8358
(Merrill Lynch SR 78)
Municipal Bond Unit Trust - 1 share - FMV $25
(Merrill Lynch SR 100)
Municipal Bond Unit Trust - 1 share - FMV $727
(Merrill Lynch SR 110)
Municipal Bond Unit Trust - 8 shares - FMV $1359
(Merrill Lynch SR 119)
Municipal Bond Unit Trust - 1 share - FMV $848
(Merrill Lynch SR 132)
Municipal Investment Trust - 8 shares - FMV $8358
(Merrill Lynch)
Municipal Fund Invest. - FMV $19,800
(Merrill Lynch)
National Medical Enterprises (IRA) - 1500 shares - $22,500
Potomac Electric Power Co. (SEP) - 187 shares - $4,698
Russell Corporation - 900 shares - $23,850
Stride Rite (SEP) - 1200 shares - $20,850
T Squared Medical - 2100 shares - $16,013
Woolworth's - 600 shares - $15,375
Total listed securities: $278,668
Schedule on Real Estate
1. I own at house at 4640 Brand/wine St. NW, Washington, DC
20016. My best estimate of its current value is $375,000. I
have an outstanding mortgage of approximately $48,000 with
Maryland National Mortgage Corporation.
29B
263
III, genera; (public)
1. An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
•every lawyer, regardless of professional prominence or
professional workload, to find some time to participate in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances and
the amount of time devoted to each.
I have had a longstanding commitment as a lawyer to serving
the disadvantaged. During law school, I spent the summer of 1967
working at the NAACP Legal Defense and Education Fund in
Mississippi on civil rights issues. Upon graduating from law
school in 1969, I worked for close to a year on a Reginald Heber
Smith Fellowship at the Boston Legal Assistance Project, a legal
services office, where I participated in cases on behalf of low-
income Bostonians.
In 1970, I moved back to Washington, D.C., and after a year
as a law clerk, I entered private practice. During my tenure at
Leva, Hawes (1971 to 1974), I handled several court-appointed
criminal appeals, and several other pro bono cases on behalf of
disadvantaged people, including a suit on behalf of a short woman
who wanted to become a D.C. police officer, a job from which she
was precluded because of her height. The case settled
successfully and the D.C. Police Department lowered the height
requirement.
From 1974 to early 1978, I worked for the Women's Rights
Project of the Center for Law and Social Policy, a public
interest law firm. My work there centered on protecting the
needs and interests of women, including poor and minority women,
in the areas of education, health, and insurance. I participated
on committees addressed to these interests, and handled lawsuits
(including WEAL v. Mathews) , filed comments before administrative
agencies, and provided information and testimony to Congress on
these issues.
Also during those years, I became active in the District of
Columbia Bar, a unified bar in the District of Columbia with a
strong record of commitment to the disadvantaged. I co-chaired
the Criminal and Individual Rights Committee, which among other
things focused on issues that affected the disadvantaged. I also
served on the Board and litigation screening committees of the
Women's Legal Defense Fund, a public interest organization
devoted to advancing the needs and interests of women, especially
disadvantaged women.
From 1978 to 1984, I worked at the Department of Justice in
the Land and Natural Resources Division. I spent some of those
years as Chief of the General Litigation Section, where I worked,
- 30 -
264
successfully, to diversify the attorney workforce. During this
time, I hope that I brought to bear a sensitivity to the
disadvantaged as they were affected by the actions of the federal
government that we enforced or defended. One case in particular
illustrates my concern. A group of residents in Selma, Alabama
brought suit under the National Environmental Policy Act and
other statutes to reguire the military, which was closing a base
in Selma, to make available the housing on that base to both poor
people and black people in the area. Consistent with effective
defense of the United States' actions and interests, I worked
with a number of government agencies to settle the lawsuit in a
way that resulted in some of the housing being made available to
the disadvantaged residents of Selma.
During this period, I also worked with an interagency
committee to open to government attorneys greater opportunities
to undertake pro bono representation, including the
representation of the disadvantaged. I also was elected to the
Board of the District of Columbia Bar, where I worked to assure
that the Bar had a strong public service program serving the poor
and disadvantaged. I served on the Boards of the Women's Legal
Defense Fund and of the American Civil Liberties Union of the
National Capitol Area; both organizations devote some of their
resources to handling cases and addressing concerns of the
disadvantaged. As a member of the Litigation Screening Committee
of the American Civil Liberties Union, I urged the organization
to take cases that advanced the rights of minorities and the
disadvantaged .
During the past ten years, I have continued to work with the
District of Columbia Bar, the Women's Legal Defense Fund, and the
American Civil Liberties Union (including, from 1991-1993 the
Board of the National American Civil Liberties Union) and have
sought to have the work of those organizations address the needs
of the disadvantaged. For example, during my tenure on the
American Civil Liberties Union/NCA Board, we adopted a Community
Outreach plan addressed to just those concerns. In addition, I
have been a member of the District of Columbia Circuit Judicial
Conference that adopted, and have actively supported, a rule
urging all lawyers, as an obligation of the profession, to commit
40 hours or $200 each year to the disadvantaged.
2. Do you currently belong, or have you belonged, to any
organization which discriminates on the basis of race, sex, or
religion — through either formal membership reguirements or the
practical implementation of membership policies? If so, list,
with dates of membership. What you have [sic] done to try to
change these policies?
I have not belonged to any organization that discriminates
on the basis of race, sex, or religion.
- 31 -
265
ATTACHMENT A
6.
8.
9.
10.
11.
12.
13.
14.
15.
16.
Monsanto Co. v. Aetna Cas
(Del. Super., Dec 09, 1993
Monsanto Co. v. Aetna Cas
(Del. Super., Dec 09, 1993
Monsanto Co. v. Aetna Cas
(Del. Super., Dec 09, 1993
Monsanto Co. v. Aetna Cas
(Del. Super., Dec 09, 1993
Monsanto Co. v. Aetna Cas
(Del. Super., Dec 09, 1993
Monsanto Co. v. Aetna Cas
(Del. Super., Dec 09, 1993
Monsanto Co. v. Aetna Cas
(Del. Super., Dec 09, 1993
Monsanto Co. v. Aetna Cas
(Del. Super., Sep 14, 1992
Monsanto Co. v. Aetna Cas
(Del. Super., Sep 11, 1992
Monsanto Co. v. Aetna Cas
(Del. Super., Sep 11, 1992
Monsanto Co. v. Aetna Cas
(Del. Super., Sep 02, 1992
and Sur. Co. , 1993 WL 542399
(NO. 88C-JA-118)
and Sur. Co., 1993 WL 542402
(NO. 88C-JA-118)
and Sur. Co., 1993 WL 542406
(NO. 88C-JA-118)
and Sur. Co., 1993 WL 542412
(NO. 88C-JA-118)
and Sur. Co., 1993 WL 542419
(NO. 88C-JA-118)
and Sur. Co., 1993 WL 542428
(NO. 88C-JA-118)
and Sur. Co., 1993 WL 542431
(NO. 88C-JA-118)
and Sur. Co. , 1992 WL 302261
(NO. 88C-JA-118)
and Sur. Co., 1992 WL 245577
(NO. 88C-JA-118)
and Sur. Co., 1992 WL 245578
(NO. 88C-JA-118)
and Sur. Co., 1992 WL 245579
(NO. 88C-JA-118)
Monsanto Co. v. Aetna Cas. and Sur. Co., 1992 WL 212516
(Del.Ch., Jul 30, 1992) (NO. C.A. 9576)
Monsanto Co. v. Aetna Cas. and Sur. Co., 1992 WL 182325
(Del. Super., Jun 12, 1992) (NO. 88C-JA-118)
Monsanto Co. v. Aetna Cas. and Sur. Co., 1992 WL 182320
(Del. Super., May 26, 1992) (NO. 88C-JA-118)
Monsanto Co. v. Aetna Cas. and Sur. Co., 1992 WL 182322
(Del. Super., May 26, 1992) (NO. 88C-JA-118)
Monsanto Co. v. Aetna Cas. and Sur. Co., 1992 WL 19949
(Del. Super., Jan 31, 1992) (NO. C.A. 88C-JA-118)
COPR. (C) WEST 1994 NO CLAIM TO ORIG. U.S. GOVT. WORKS
266
17. Monsanto Co. v. Aetna Cas. and Sur. Co., 1991 WL 236936
(Del. Super., Oct 29, 1991) (NO. C.A. 88C-JA-lld)
18. Monsanto Co. v. Aetna Cas. and Sur. Co., 1991 WL 216456
(Del. Super., Oct 16, 1991) (NO. C.A. 88C-JA-118)
19. Monsanto Co. v. Aetna Cas. and Sur. Co., 1991 WL 215621
(Del.Ch., Sep 25, 1991) (NO. C.A. 9576, C.A. 88C-JA-118)
20. Monsanto Co. v. Aetna Cas. and Sur. Co., 1991 WL 190336
(Del. Super., Sep 06, 1991) (NO. C.A. 88C-JA-118)
21. Monsanto Co. v. Aetna Cas. and Sur. Co., 1991 WL 190272
(Del.Ch., Sep 05, 1991) (NO. C.A. 9576, C.A. 88C-JA-118)
22. Monsanto Co. v. Aetna Cas. and Sur. Co., 1991 WL 138586
(Del. Super., Jun 17, 1991) (NO. C.A. 88C-JA-118)
23. Monsanto Co. v. Aetna Cas. and Sur. Co., 1991 WL 138587
(Del. Super., Jun 17, 1991) (NO. C.A. 88C-JA-118)
24. Monsanto Co. v. Aetna Cas. and Sur. Co., 1991 WL 113608
(Del. Super., Jun 04, 1991) (NO. C.A. 88C-JA-118)
25. Monsanto Co. v. Aetna Cas. and Sur. Co., 1991 WL 89786
(Del. Super., May 02, 1991) (NO. C.A. 88C-JA-118)
26. Monsanto Co. v. Aetna Cas. and Sur. Co., 1991 WL 53822
(Del. Super., Apr 08, 1991) (NO. C.A. 88C-JA-118)
27. Monsanto Co. v. Aetna Cas. and Sur. Co., 1991 WL 53824
(Del. Super., Mar 27, 1991) (NO. C.A. 88C-JA-118)
28. Monsanto Co. v. Aetna Cas. and Sur. Co., 1991 WL 35684
(Del. Super., Mar 13, 1991) (NO. C.A. 9576, C.A. 88C-JA-118)
29. Monsanto Co. v. Aetna, 1991 WL 18127 (Del. Super., Feb 11, 1991)
(NO. C.A. 88C-JA-118)
30. Monsanto Co. v. Aetna Cas. and Sur. Co., 1991 WL 18126
(Del. Super., Feb 05, 1991) (NO. C.A. 88C-JA-118)
31. Monsanto Co. v. Aetna Cas. & Sur. Co., 1991 WL 14112
(Del. Super., Jan 03, 1991) (NO. C.A. 88C-JA-118)
32. Monsanto Co. v. Aetna Cas. and Sur. Co., 1990 WL 200464
(Del. Super., Dec 04, 1990) (NO. C.A. 88C-JA-118)
33. Monsanto Co. v. Aetna Cas. and Sur. Co., 1990 WL 200471
(Del. Super., Dec 04, 1990) (NO. C.A. 88C-JA-118)
COPR. (C) WEST 1994 NO CLAIM TO ORIG. D.S. GOVT. WORKS
267
34. Monsanto Co. v. Aetna Cas. and Sur. Co., 1990 ML 200482
(Del. Super., Nov 20, 1990) (NO. C.A. 88C-JA-118)
35. Monsanto Co. v. Aetna Cas. and Sur. Co., 1990 WL 179885
(Del. Super., Nov 16, 1990) (NO. C.A. 88C-JA-118)
36. North American Phillips Corp. v. Aetna Cas. and Sur. Co., 1990 WL 140103
(Del. Super., Sep 19, 1990) (NO. C.A. 88C-JA-155, C.A. 88C-JA-118)
37. Monsanto Co. v. Aetna Cas. & Sur. Co., 593 A. 2d 1013
(Del. Super., Sep 10, 1990) (NO. CIV. A. 88C-JA-118)
38. Monsanto Co. v. Aetna Cas. 6 Sur. Co., 1990 WL 122989
(Del.Ch., Jul 27, 1990) (NO. C.A. 9576)
39. Monsanto Co. v. Aetna Cas. & Sur. Co., 1990 WL 96588
(Del. Super., Jul 11, 1990) (NO. C.A. 88C-JA-118)
40. Monsanto Co. v. Aetna Cas. and Sur. Co., 1990 WL 82006
(Del.Ch., Jun 08, 1990) (NO. C.A. 9576)
41. Monsanto Co. v. Aetna Cas. and Sur. Co., 577 A. 2d 754 (Table, Text in
WESTLAW) , Unpublished Disposition, 1990 WL 72535
(Del.Supr., Apr 16, 1990) (NO. 82,1990)
42. Monsanto Co. v. Aetna Cas. and Sur. Co., 1990 WL 35312
(Del. Super., Mar 27, 1990) (NO. C.A. 88C-JA-118)
43. Monsanto Co. v. Aetna Cas. and Sur. Co., 1990 WL 9496
(Del. Super., Jan 19, 1990) (NO. C.A. 88C-JA-118)
44. Monsanto Co. v. Aetna Cas. and Sur. Co., 565 A. 2d 268
(Del. Super., May 22, 1989) (NO. CIV. A. 88C-JA-118)
45. Monsanto Co. v. Aetna Cas. and Sur. Co., 559 A. 2d 1301
(Del. Super., Oct 21, 1988) (NO. CIV. A. 88-C-JA-118)
END OF CITATIONS LIST
COPR. (C) WEST 1994 NO CLAIM TO ORIG. U.S. GOVT. WORKS
268
ATTACHMENT B
SERVICE LIST
MONSANTO COMPANY v. AETNA CASUALTY & SURETY CO., tt ll.
Del. Super., C.A. No. 88C-JA-118-1-CV
Del. Ch., C.A. No. 9576
PLAINTIFF
Attorneys for Plaintiff
ANDERSON KILL OLICK & OSHINSKY
*Jerold Oshinsky
Lorelie S. Masters
2000 Pennsylvania Ave., N.W.
Suite 7500
Washington, D.C. 20006
Phone t: (202) 728-3100
Telecopy t: (202) 728-3199
DONNENFELD BRAY &
SCHWALB,
SILBERT
*John M. Bray
David J. Curtin
1025 Thomas Jefferson
Suite 300 East
Washington, D.C. 20U07
Phone t: 202-96^-
Telecopy t: 202-337-
St.
7910
067 6
NW
POTTER, ANDERSON t CORROON
•Richard E. Poole
Richard L. Horvitz
350 Delaware Trust Building
902 Market Street
Wilmington, Delaware 19802
(P.O. Box 951; USE ZIP 19899)
Phone /: (302) 658-6771
Telecopy /: (302) 658-7851
658-1192
655-1190
ANDERSON KILL OLICK i OSHINSKY
Patricia A. Van Dyke
666 Third Avenue
New York, New York 10017
Phone /: (212) 850-0700
Telecopy /: (212) 850-0733
or 342-7158
DEFENDANTS
Counsel for Aetna Casualty and Surety Company
MILLER, CASSIDY, LARROCA 4
LEWIN
•James E. Rocap, III
Barbara Straugh Harris
D. Bradley Clements
2555 M Street, N.W.
Suite 500
Washington, D.C. 20037
Phone /: (202) 293-6400
Telecopy t: (202) 293-1827
HEIMAN, ABER k GOLDLUST
Gary W. Aber
First Federal Plaza
702 King Street
P.O. Box 1675
Wilmington, Delaware 19899
Phone #: (302) 658-1800
Telecopy #: (302) 658-1473
•Lead Counsel
**Major Party Involvement
'*Co-Counsel
July 12, 1993
269
Counsel for Allatata Inauranca Company
GLEASON, McGUIRE 4 SHREFFLER
Nancy J. Gleason
Michael R. Orlando
140 south Dearborn
Suite 700
Chicago, Illinois 60603
Phone /: (312) 641-0580
Telecopy /: (312) 641-0380
SMITH, KATZENSTEIN 4
FURLOW
* Robert J. Katzenatein
Laurence V. Cronin
1220 Market Building, 5th Floor
P.O. Box 410
Wilmington, Delaware 19899
Phone f: (302) 652-8400
Telecopy i: (302) 652-8405
Counsel for
AIG Companies
AIU Insurance Company
American Home Assurance Company
Birmingham Fire Insurance Company of Pennsylvania
Granite State Insurance Company
Insurance Company of the State of Pennsylvania
Lexington Insurance Company
National Union Fire Insurance Company of Pittsburgh
JACKSON 4 CAMPBELL, P.C.
•James P. Schaller
Robert N. Kelly
One Lafayette Center
1120 20th Street, N.W.
Suite 300 South
Washington, D.C. 20036
Phone t: (202) 457-1600
Telecopy #: (202) 457-1678
YOUNG, CONAWAY, STARGATT 4
TAYLOR
Anthony G. Flynn
11th and Market Street
Rodney Square North, 11th Floor
Wilmington, Delaware 19899
Phone t: (302) 571-6600
Telecopy /: (302) 571-1253
Counsel for American Manufacturers Mutual Insurance Company
DRINKER, BIDDLE 4 REATH
'Graham Robb, Esq.
James M. Sweet, Esq.
1100 Philadelphia National
Bank Bldg.
Broad & Chestnut Streets
Philadelphia, PA 19107
Phone t: (215) 988-2700
Telecopy i: (215) 988-2757
BIGGS 4 BATTAGLIA
Robert K. Beste, Jr.
1206 Mellon Bank Center
P.O. Box 1489
Wilmington, Delaware 19899-1489
Phone I: (302) 655-9677
Telecopy /: (302) 655-7924
Counsel for Appalachian Insurance Company
PRIESTLEY, McGUIRL 4 WACHENFELD
William S. Wachenfeld
10 Park Place
Newark, New Jersey 07102
Phone t: (201) 623-0700
Telecopy /: (201) 648-0815
*Lead Counsel
**Major Party Involvement
>**Co-Counsel
BURT 4 BURT
David Burt
Phone /: (302)
429-9430
July 12, 1993
270
Counsel for C.E. Heath Compensation and Liability Insurance
Company
CONNOLLY, BOVE, LODGE & HUTZ
Henry E. Gallagher, Jr.
Collins J. Seitz, Jr.
1220 Market Street
Wilmington, Delaware 19801
Phone /: (302) 658-9141
Telecopy /: (302) 658-5614
CHRISTIE, PABARUE, MORTENSEN
& YOUNG
James A. A. Pabarue
10th PI., 1880 JFK Blvd.
Philadelphia, PA 19103
Phone /: (215) 587-1600
Telecopy t: (215) 587-1699
Counsel for California Onion Insurance Company, Insurance Company
of North America flNA) and Pacific Employers Insurance Company
WILMER, CUTLER i PICKERING
A. Stephen Hut, Jr.
2445 M Street, N.W.
Washington, D.C. 20037-1420
Phone #: (202) 663-6000
Telecopy #: (202) 293-0074
SAWYER & AKIN, P. A.
Bruce C. Herron
Roger A. Akin
Manufacturers Hanover Plaza
1201 N. Market Street
P.O. Box 25047
Wilmington, Delaware 19899
Phone t: (302) 655-5552
Telecopy f: (302) 655-3697
Counsel for Columbia Casualty Company 4 Continental Casualty Company
HASKELL & PERRIN
•Marsha K. Ross
Eileen M. King Bower
200 West Adams Street, /2600
Chicago, Illinois 60606
Phone #: (312) 781-9393
Telecopy t: (312) 781-9178
THEISEN, LANK, MULFORD 4 GOLDBERG
John G. Mulford
One Commerce Center, 9th Floor
12th and Orange Streets
Wilmington, Delaware 19801
Phone /: (302) 656-7712
Telecopy /: (302) 655-0923
Counsel for Employers Insurance of Wausau a Mutual Company
(Wausau Underwriters Insurance Company)
YOUNG, CONAWAY, STARGATT 4
TAYLOR
'Anthony G. Flynn
Uth and Market Street
Rodney Square North, 11th Floor
Wilmington, Delaware 19899
Phone *: (302) 571-6600
Telecopy /: (302) 571-1253
*Lead Counsel
**Major Party Involvement
***Co-Counsel
ZELLE 4 LARSON
William Gerald McElroy, Jr.
John T. Harding
Three University Office Park
95 Sawyer Road, Suite 500
Waltham, Massachusetts 02154
Phone /: (617) 891-7020
Telecopy t: (617) 891-7665
NOTE: Do not include on mail/
fax transmissions.
July 12, 1993
271
Counsel for Fireman's Fund Insurance Company
RIVKIN, RAOLER i KREMER
Gary 0. Cento la
. Phi lip L. Narotzky
Jeffrey D. Wait
EAB Plaza
Uniondale, New York 11556-0111
Phone /: (516) 357-3000
Telecopy t: (516) 357-3333
BAYARD, HANDELMAN i MURDOCH,
Richard K. Herrmann
902 Market Street Mall
13th Floor
Wilmington, Delaware 19801
Phone #: (302) 655-5000
Telecopy t: (302) 658-4312
P. A.
Counsel for First State Insurance Company,
Royal Indemnity Company
and New England Insurance Company
SIFF ROSEN P.C.
David M. Pollack
'Deborah L. Shews rd
233 Broadway
New York, New York 10279
Phone $: (212) 238-8400
Telecopy /: (212) 693-0654
TRZUSKOWSKI, KIPP, KELLEHER
PEARCE, P. A.
Edward F. Kafader
1020 North Bancroft Parkway
Wilmington, Delaware 19805
Phone /: (302) 571-1782
Telecopy I: (302) 571-1638
Counsel for Hartford Accident and Indemnity Company
HOCAN & HARTSON
John P. Arness
William J. Cassidy, Jr.
*P. Dustin Finney, Jr.
Columbia Square
555 13th Street, N.W.
Washington, D.C. 20004
Phone t: (202) 637-5600
Telecopy i: (202) 637-5910
TRZUSKOWSKI, KIPP, KELLEHER k
PEARCE, P. A.
Edward F. Kafader
1020 North Bancroft Parkway
Wilmington, Delaware 19805
Phone t: (302) 571-1782
Telecopy /: (302) 571-1638
Counsel for Hudson Insurance Company and National Casualty Company
LeBOEUF, LAMB, LEIBY i MacRAE
Cynthia Andreason
1875 Connecticut Avenue, N.W.
Suite 1200
Washington, D.C. 20009-5728
Phone #: (202) 986-8000
Telecopy #: (202) 986-8102
* Elizabeth B. Sandza, Esq.
901 Market Street
Suite 460
Wilmington, DE 19801
(302) 656-9299
(302) 429-5953
•Lead Counsel
"Major Party Involvement
'••Co-Counsel
July 12, 1993
272
Counsel for International Insurance Company rEIL Policy)
MORRIS, JAMES, HITCHENS t
WILLIAMS
*Mames W. Semple
222 Delaware Avenue
P.O. Box 2306
Wilmington, Delaware 19899
Phone t: (302) 888-6800
Telecopy /: (302) 571-1750
ORRICK, HERRINGTON * SUTCLIFFE
* Frederick Brown
Old Federal Reserve Bank Bldg.
400 Sansome Street
San Francisco, California 94111
Phone t: (415) 392-1122
Telecopy #: (415) 773-5759
Counsel for International Insurance Company (CGL)
and United States Fire Insurance Company
MCELROY, DEUTSCH & MULVANEY
Kevin T. Cough 1 in
♦John Whitteaker
1300 Mt. Kemble Avenue (Rt. 202)
P.O. Box 2075
Morristown, New Jersey 07962-2075
Phone #: (201) 993-8100
Telecopy /: (201) 425-0161
HECKLER t CATTIE
William J. Cattle, III
Ninth Street Plaza Bldg.
200 West Ninth Street
Third Floor
Wilmington, Delaware 19801
Phone /: (302) 573-4800
Telecopy f: (302) 573-4806
Counsel for Liberty Mutual Insurance Company
ELZUFON, AUSTIN & DREXLER, P. A.
**Lawrence S. Drexler
1201 Market
Street
Suite 2100
Wilmington,
Delaware 19899-1630
Phone #:
(302) 428-3181
Telecopy #:
(302) 428-3180
MANTA AND WELGE
Joseph G. Manta
Jacqueline A. Borock
David S. Florig
Mark J. Manta
37th Floor
One Commerce Square
2005 Market Street
Philadelphia, Pennsylvania 19103
Phone #: (215) 851-6600
Telecopy f: (215) 851-6644
Counsel for Certain Underwriters at Lloyd's, London
and London Market Insurance Companies
NUSSBAUM 4 WALD
*** Michael Nussbaum
Lois J. Schiffer
Jean M. Scott
Stephen H. Marcus
One Thomas Circle, N.W., /200
Washington, D.C. 20005
Phone #: (202) 833-8900
Telecopy §: (202) 466-5738
MURPHY WELCH t SPADARO
Francis J. Murphy
John S. Spadaro
824 Market Street, 1st Floor
Marine Midland Plaza
P.O. Box 8989
Wilmington, Delaware 19899
Phone t: (302) 654-4600
Telecopy /: (302) 654-4775
*Lead Counsel
**Major Party Involvement
***Co-Counsel
July 12, 1993
273
Counsel for Worth Star Reinsurance Corporation
SKADDEN, ARPS, SLATE, MEAGHER
« FLOM
** Irene A. Sullivan
Timothy C. Reynolds
919 Third Avenue
New York, New York 10022
Phone #: (212) 735-3000
Telecopy t: (212) 735-2001
SKADDEN, ARPS, SLATE, MEAGHER
k FLOM
Robert M. Omrod
Kevin F. Brady
One Rodney Square, 7th Floor
Wilmington, Delaware 19801
Phone #: (302) 651-3000
Telecopy f: (302) 651-3001
429-9216
Counsel for Northwestern National Insurance Company
WILSON, ELSER, MOSKOWITZ,
EDELMAN k DICKER
Stephen D. Straus
Eileen Eglin
150 E. 42nd Street
New York, New York 10017-5639
Phone #: (212) 490-3000
Telecopy t (212) 490-3038
CASARINO, CHRISTMAN k SHALK
Kenneth M. Doss
Stephen P. Casarino
222 Delaware Avenue
Suite 1220
Wilmington, Delaware 19801
Phone /: (302) 594-4500
Telecopy t: (302) 594-4509
Counsel for Protective National Insurance Company of Omaha
OBER, KALER, GRIMES k SHRIVER
Benjamin Gonson, Esquire
1345 Avenue of the Americas
New York, New York 10105-0010
Phone 0: (212) 315-3200
Telecopy #: (212) 315-3242
CASARINO, CHRISTMAN k SHALK
Stephen P. Casarino
Donald Ransom
222 Delaware Avenue, #1220
Wilmington, Delaware 19801
Phone /: (302) 594-4500
Telecopy /: (302) 594-4509
counsel for St. Paul Surplus Lines Insurance Company
YOUNG, CONAWAY, STARGATT
k TAYLOR
•Anthony G. Flynn
Frederick w. lobst
James F. Matter
Rodney Square North
llth 4 Market Street
Wilmington, Delaware 19899
Phone #: (302) 571-6600
Telecopy #: (302) 571-1253
ADAMS, DUQUE k HAZELTINE
Kimball Ann Lane
Patricia Dee Bilka
551 Madison Avenue
8th Floor
New York, New York 10022
Phone t: (212) 750-1240
Telecopy /: (212) 644-9727
*Lead Counsel
"Major Party Involvement
'**Co-Counsel
July 12, 1993
274
counsel for The Home Insurance Company
STEPTOE t JOHNSON
Christopher T. Lutz
1330 Connecticut Avenue
Washington, D.C. 20036
Phone t: (202) 429-6440
Telecopy #! (202) 429-9204
429-9205
ROSENTHAL, MONHAIT
i GROSS, P. A.
Norman M. Honhait
First Federal Plaza
Suite 214
Wilmington, Delaware 19801
Phone /: (302) 656-4433
Telecopy f: (302) 658-7567
Counsel for Travelers Indemnity Company
WILEY, REIN & FIELDING
** Bert W. Rein
Richard L. McConnell
Mitchell B. Kriendler
1776 K Street, N.W.
Washington, D.C. 20006
Phone t: (202) 429-7000
Telecopy /: (202) 429-7207/7049
DUANE, MORRIS k HECKSCHER
Judith N. Renzulli
1201 Market Street, Suite 1500
P.O. Box 195
Wilmington, Delaware 19899
Phone t: (302) 571-5550
Telecopy /: (302) 571-5560
Counsel for Unioard Security Insurance Company
J. R. JULIAN, P. A.
J. R. Julian
824 Market Street
Suite 1001
Wilmington, Delaware 19899
Phone t:
(302) 658-6700
Telecopy i: (302) 658-6708
TAYLOR, ANDERSON & TRAVERS
James J. Duane, III
Susan G. Winkler
7 5 Federal Street
Boston, Massachusetts 02110
Phone /:
(617) 654-8200
Telecopy /: (617) 482-5350
SPECIAL DIBCOVERY MASTER
The Honorable Harvey B. Rubenstein
Special Discovery Master
824 Market Street, Suite 901
Wilmington, DE 19801
Phone #: (302) 658-4101
Telecopy t: (302) 888-1588
*Lead Counsel
"Major Party Involvement
***Co-Counsel
July 12, 1993
275
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SUSAN S RAI
ATTORNEY AT LAW
20 COW LANE KINGS POINT NEW YORK I 1024
516 466-2364
February 10, 1994
Senator Patrick J. Leahy
SR 433 Russell Senate Office Building
Washington, D.C. 20510-4502
Dear Senator Leahy:
For the past five years I have been a trustee of Marlboro
Music School and Festival, an honor I share with several
distinguished citizens of your state, including the dean of the
University of Vermont Law School. The extraordinary teaching and
performances which occur in Marlboro have been part of my life for
itiore than 20 years.
For even longer - 30 years to be exact - I have been a close
friend of Lois Schiffer, who has been nominated for the position of
Assistant Attorney General for the Environment and Natural
Resources Division.
Lois is a person of extraordinary integrity, intelligence,
energy, and common sense. She has wide experience in environmental
matters. In my opinion, she is exceptionally well-suited to join
the Justice Department in the position for which she is a candi-
date.
Sincerely,
S\.
b • }<a.\
Susan S. Rai
291
/AX TO: SENATOR LEAHY 202/224-3595
FROM: PATRICK PARENTEAU, VERMONT LAW SCHOOL
February 15, 1994
The Honorable Patrick I. Leahy
433 Russell Senate Bldg.
Washington, D.C. 20510
Dear Senator Leahy:
I am writing to express ray strong support for Lois J. Schiffer, President Clinton's
nominee to be Assistant Attorney General of the Environment and Natural Resources
Division at die Department of Justice. As you know, diis Division has the major
responsibility for enforcing the nation's environmental laws and for vindicating the
environmental policies of the Federal Government. It is one of the most important and
challenging positions in government, and it demands the highest standards of professional
competence and integrity.
Having known Lois Schiffer for over ten years, I can say with confidence that she
measures up to the job in every way. Not only is Lois a fine lawyer, a skilled litigator, and
a proven manager, but she also possesses the kind of personal characteristics and values that
make her an exemplary guardian of the public trust. Lois knows both the legal process and
the process of governing. She is a leader and a problem solver. I believe she would make
an outstanding choice to head the Environmental Division, and 1 hope you will actively
support her confirmation in your role on the Judiciary Committee.
Please let me know if I can provide any additional information.
Sincerely,
Patrick A. Parenteau
Director
Environmental Law Center
292
Douglas M. Costle
Rural Route #2
P.O. Box 480
Woodstock, Vermont 05091
February 16, 1994
The Honorable Patrick J. Leahy
United States Senate
433 Russell Buiktfng
Washington D.C. Z051
DearS
As former Dean of the Vermont Law School and former Administrator of
the Environmental Protection Agency, I am writing to express my strong support of Lois J.
Schiffer, President Clinton's nominee to be Assistant Attorney General of the Environment
and Natural Resources Division at the Department of Justice.
Lois has broad experience in environmental law, litigation, negotiation and
management. Her experience encompasses a successful career both in the Division she has
been nominated to head and also in private practice. In an era where the problems of
litigation concerning hazardous waste have become a concern, she is particularly well
equipped. She has handled several major, complex cases in that arena, both on behalf of
the government and for private parties.
1 know Lois and I am familiar with her outstanding professional reputation,
both in the private and public sectors. Lois is a fine person and has both the qualities and
environmental law experience that make her well suited to fill the Assistant Attorney
General position. She is very energetic and at the very moment in her career when she can
be expected to contribute her very best to the position. The Nation would-be well served to
have Lois confirmed as the head of the Envirorwnent and Natural Re>o1jrces Division.
cc: Lois J. Schiffer
293
United States Department of the Interior Sbca
FISH AND WILDLIFE SERVICE
Washington, DC. 20240
FEB 2 8 1994
The Honorable Patrick J. Leahy
United States Senate
Washington, D.C. 20510
Dear Senator Leahy:
I am writing to express my support for Lois J. Schiffer, President
Clinton's nominee to be Assistant Attorney General of the
Environment and Natural Resources Division at the Department of
Justice .
Through my work at the Department of the Interior, I am familiar
with Lois' outstanding professional reputation. Her extensive
environmental law background and commitment to public service make
her well suited to handle the important issues confronting the
Environment Division. I look forward to seeing her confirmed as
Assistant Attorney General.
Best Regards,
Mollie H. Beattie
Director
294
lliance for Justice) American Rivers Defenders of Wildlife
EnvlHinwynidt Delense Fund Friends of the Earth League of
Conservation Voters National Audubon Society National
Parks & Conservation Association National Trust for Historic
Preservation Native American Rights Fund Natural Resources
Defense Council Physicians for Social Responsibility Sierra
Club Sierra Club Legal Defense Fund Union of Concerned
Scientists World Wildlife Fund
July 1,1994
The Honorable Joseph R. Biden
Chairman
Senate Judiciary Committee
224 Dirksen Building
1st &C Streets, NE
Washington, DC 20510
Dear Chairman Biden:
We are writing to express our strong support for the nomination of Lois Schiffer
to be Assistant Attorney General for the Environment and Natural Resources
Division of the U.S. Department of Justice, and to urge the Committee to
expeditiously act on her nomination with a favorable recommendation to the full
Senate.
Ms. Schiffer is a highly respected attorney with a broad range of experience in
government and in private and public interest law practice. She will bring to this
position a firm grasp of the complexities of environmental and natural resource
issues and the need for fair and effective enforcement of the law.
We believe it should be a priority for the Committee to act on this nomination.
This is one of the few positions at the level of Assistant Attorney General in the new
Administration that lacks a Senate-confirmed head. Moreover, the Division has
been without a Senate-confirmed head for over three years, seriously undermining
the Division's ability to carry out its important work.
Thank you for considering our views on the importance of moving forward with
Ms. Set-lifter's nomination.
295
Sincerely yours,
Kj}*-
Gu
Nan Aron
Executive Director
Alliance for Justice
Kevin Coyle
Executive Director
American Rivers
-HZfTfarr
Fred D. Krup
Executive Director
Environmental Defense Fund
'6*
Peter A. A. Berle
President & CEO
National Audubon Society
Richard Moe
President
National Trust for Historic
Preservation
Julia A. Moore
Executive Director
Physicians for Social
ifc^O f<&
Howard Ris
Executive Director
Union of Concerned Scientists
jfot*"
£Ua*VX+'
John Adams
Executive Director
Natural Resource Defense Council
Carl Pope
Executive Director
Sierra Club
{irtAtu S. IwJiuL
Kathryn Fuller
President
World Wildlife Fund
296
James Wyerman
Vice President for Program
Defenders for Wildlife
Jim Maddy
President
League of Conservation Voters
Jane Perkins
President
Friends of the Earth
Victor Sher
President
Sierra Club Legal Defense Fund
/4*~£±CL*JL
John Ecohawk
Executive Director
Native American Rights Fund
Paul C. Pritchard
President
National Parks & Conservation
Association
297
M
?h JUL 18 PH 3 5 ^Hf
THE WILDERNESS SOCIETY
G JON ROUSH
President
July 14, 1994
The Honorable Joseph R. Biden
Chairman, Senate Judiciary Committee
224 Dirksen Senate Office Building
Washington, D.C. 20510
Dear Mr. Chairman:
I am writing to express the strong support of The Wilderness Society for the
nomination of Lois Schiffer as Assistant Attorney General for the Environment and
Natural Resources Division of the U.S. Department of Justice.
Ms. Schiffer has an extensive background in both the private sector and in
previous government experience. She will provide a strong and forceful voice on
environmental and natural resources issues and we look forward to having her fully
assume the responsibilities of this position.
We were pleased to hear that the committee has scheduled hearings on her
nomination later this month. We commend you for moving forward and urge a favorable
recommendation to the full Senate.
Sincerely,
(Z^-^
900 SEVENTEENTH STREET. NU'. WASHINGTON, DC 20006-2596
(202) 833-2300
Printed on recycled paper
298
jg Washington
WASHINGTON L'XIMRSTTY- IX- ST- LOUIS
School of Law
August 3, 1994
The Honorable Joseph R. Biden
Chair, Senate Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington. D.C. 20510
Dear Senator Biden:
I am writing to express my support for the nomination of Lois J. Schiffer to be the
Assistant Attorney General for the Environment and Natural Resources Division of the
United States Department of Justice. I teach environmental and natural resources law, have
litigated environmental cases on behalf of the United States as a lawyer in the Environment
Division and in the Solicitor General's Office of the Justice Department, and have written
extensively on environmental law issues. I also serve on the Environmental Defense Fund's
litigation review committee and have represented EDF and other environmental public
interest organizations in litigation. r
I know quite well both Ms. Schiffer and the skills essential to the position for which
she has been nominated. I fust became acquainted with Ms. Schiffer in 1979, when I joined
the Justice Department's Environment Division (then known as the Land and Natural
Resources Division) as a trial attorney; Ms. Schiffer was then the Chief of the General
Litigation Section of the Environment Division. More recently, I worked closely with her
following President Clinton's election in November 1992, when we served together on the
Justice Department Transition Team and. in that capacity, we prepared a formal report on
the Environment Division.
I have also had the opportunity throughout my career to observe the workings of the
Environment Division. In addition to the four years I worked for the Division from 1979 to
1983. under both Democratic and Republican Administrations, I worked closely with the
Division from 1986 to 1989 when I served as an Assistant to the Solicitor General for the
Justice Department. Finally, my academic writings have prompted me to consider the
Division's work, as has litigation I have since done on behalf of environmental public interest
groups and state and local governments, bom with and against Environment Division
lawyers.
WiLihin^tion I'ivivitmi}
Cljmpus lio\ ii-'u
One Brooking Drive
si Ijiuis M un i.M*nHH')'l
I K\ ,, 'M^ (,,1111
Trlii ■•pur ithi'iW <t>*
299
The Honorable Joseph R. Biden -2-
Based on my knowledge of Ms. Schiffer and of the Division, I am confident that she
will be an outstanding Assistant Attorney General. Indeed, Ms. Schiffer combines
wonderfully the talents and perspectives necessary in a successful Assistant Attorney General
for the Environment Division. As a result of years of practicing environmental law - on
behalf of the government, industry, and environmental organizations — and teaching
environmental law as a law professor, Ms. Schiffer is truly an expert on this nation's
environmental protection laws. Few can credibly make that claim, given the sheer volume
and complexity of those laws. She also has thought about those laws from very different
vantage points, including the regulator, the regulated, and the academic. Such a background
is great virtue at the Justice Department, where one must simultaneously enforce the laws,
defend the government against claims that it is itself violating the laws, and work with client
agencies and Congress on improving existing statutory programs. Because of the great
emotions surrounding environmental protection - both from those desiring the benefits and
those incurring the costs - the head of the Environment Division "must undertake these
difficult, sometimes seemingly conflicting tasks, under intense public scrutiny and constant
second-guessing.
It is only the rare individual that has the knowledge, stature, and, indeed, stamina
necessary for the job. Lois J. Schiffer is such a person. And, I hope for that reason, that
the Senate Judiciary Committee will act expeditiously and favorably on her nomination.
Thank you for providing me with this opportunity to write on her behalf.
I
\
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NUb 1.131 BB9-AOB6
August 5, 1994
Hand Delivered
Senator Joseph R. Biden, Jr.
Chairman
Committee on the Judiciary
Attention: Nominations
SD-224 Dirksen Senate Office Building
Washington, D.C. 20510-6275
Re: Lois J. Schiffer
Dear Mr. Chairman:
I am writing in support of the confirmation of Lois J.
Schiffer as Assistant Attorney General for the Environment &
Natural Resources Division of the Department of Justice. When I
served in that position during the Carter administration, I
recruited Lois for the position of Section Chief of the
Division's General Litigation Section. Lois served as Section
Chief with great distinction, and I was thoroughly impressed by
the high quality of her work. Lois is an outstanding lawyer, a
person of great integrity and fairness, and an accomplished
administrator. Lois is a very hard worker, knowledgeable in the
field of environmental law, and the straightest of straight
arrows .
Since our time together at Justice, I have continued to
follow her career and have seen her occasionally in social
settings. I have learned over the years that Lois is very
interested in the environment and cares very much about
practicing and advancing environmental protection values.
In my opinion, Lois is very well suited for the
position of AAG for "Lands" (as its alumni often call the
Division) , and I believe she will compile an outstanding record
during her term which we will all be proud of.
Very truly yours,
/yames W. Moorman
301
ENVIRONMENTAL
DEFENSE FUND
Capital Office
1875 Connecticut Ave., N.W.
Washington, DC 20009
(202) 387-3500
Fat: 202-234-6049
-.ugust
1994
Honorable Joseph Biden
Chairman
Committee on the Judiciary
United States Senate
Senate Dirksen Office Building
Washington, D.C. 20510-6275
Dear Chairman Biden:
I am writing to offer the Committee my strong endorsement
of Lois J. Schiffer to be Assistant Attorney General for the
Environment and Natural Resources Division of the U.S.
Department of Justice.
As legislative director for the Environmental Defense Fund,
I am personally familiar with Ms. Schiffer 's work for the
Department cf Justice. I have worked with Ms. Schiffer most
recently on the Administration's pending bill to reauthorize
and reform the federal Superfund program, in which the
Department of Justice has played a crucial role. In all of her
work, I have know Ms. Schiffer to be a strong and effective
advocate for environmental protection. She has a balanced
understanding of the nuances of environmental issues,
reflecting a breadth cf experience both as an attorney and an
environmentalist. Most importantly, in all of our discussions,
Ms. Schiffer has exhibited the forthrightness and professional
integrity that are essential to those holding this position of
public trust.
I appreciate the opportunity to present my views and urge
the Committee and the Senate to take prompt action to confirm
Ms. Schiffer as Assistant Attorney General.
Sincere
iilliam JT Roberts
Legislative Director
National Headquarters
257 Park Avenue South
New York, NY 10010
(212)505-2100
100* Poo-CcnuTW Racydrt Pv
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Austin, TX 78701
(512)478-5161
302
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TELEPHONE '7131 756-2222
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VINSON & ELKINS LLP
'RCGiSTCRCD L'MITCO l'»B>liTv PaRTnCRSmiPI
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FAX OH t**-7U A99-S320
The Honorable Joseph R. Biden, Jr.
Chairman, Senate Judiciary Commission
SR-221 Russell Senate Office Building
Washington, DC 20510-0802
Dear Senator Biden:
On Tuesday next, your Committee has scheduled the confirmation hearing for Lois
Schiffer, nominee for Assistant Attorney General of the Environment and Natural
Resources Division at the Department of Justice. As Assistant Attorney General of this
Division from 1981- 1983, 1 worked closely with Ms. Schiffer on a number of sensitive legal
matters pending in the Division and I formed a high opinion of her dedication to protection
of the environment and the nation's public lands and natural resources. Because I found
her to have an outstanding analytical ability and be committed to a balanced review of
complex issues, I asked her to work on various difficult matters and valued the clear,
thoughtful advice she gave. I found Lois always to be fair and a person of the highest
integrity.
If my schedule were otherwise. I would ask to appear before the Committee in
support of this nomination; instead I ask that you consider favorably my recommendation
that Ms. Schiffer be promptly confirmed. The Division has been without an Assistant
Attorney General confirmed by the Senate for three years and Ms. Schiffer will serve in this
post ably, with distinction.
Thank you for your consideration of my comments.
Yours very truly,
CixjuoJL &l*J*x*^_
Carol E. Dinkins
303
BRUCE J TERRIS
CAROLYN SMITH PRAVLIK
MONICA WAGNER
KATHLEEN L MILLIAN
Terris. Pravlik a Wagner
1121 1 2th STREET, n w
WASHINGTON. DC 2O0O5-4632
I202) 682 2IOO
MCI/TELEX 202 267 554 I
FAX 202 289 6795
August 18, 1994
ROBERT D PARRISH
MARK V OUGAN
ROCHELLE BOBROFF
ZOENA NEMECKOVA-
ERIC A BILSKY
SCOTT M DUBIN-
J MARTIN WAGNER
SARAH POSNER
STEVEN SANTARSIERO*
•not *om>ttco to oc e*«
TESTIMONY OF
BRUCE J. TERRIS, PARTNER, TERRIS, PRAVLIK & WAGNER
BEFORE THE
COMMITTEE ON THE JUDICIARY OF THE U.S. SENATE
REGARDING THE NOMINATION OF MS. LOIS SCHIFFER FOR
THE POST OF ASSISTANT ATTORNEY GENERAL OF THE ENVIRONMENT
AND NATURAL RESOURCES DIVISION OF THE DEPARTMENT OF JUSTICE
I would like to thank the Chairman and Members of the
Committee for accepting the following testimony regarding the
nomination of Lois Schiffer for the post of Assistant Attorney
General of the Environment and Natural Resources Division of the
Department of Justice.
I have practiced environmental law for over 20 years. Over
the last 11 years, my firm has brought over 75 citizen suits to
enforce the Clean Water Act (CWA) against private and government
dischargers. These suits have resulted in over $35 million in
penalties being paid to the federal treasury. I have attached a
copy of my firm's resume (attachment 1).
My concerns regarding Ms. Schiffer' s nomination relate to
actions of the Environment and Natural Resources Division during
Ms. Schiffer' s tenure as Deputy Attorney General and more recently
as acting Assistant Attorney General. I have two related concerns.
First, the Department, in its role of defending the federal
government for its violations of the CWA, has taken positions in
direct conflict with the positions it takes as a prosecutor of
private industry for violations of the CWA. Second, I am
concerned that federal agencies such as the Departments of Energy
and Defense, which are the most significant polluters in the
Nation, have had much too large a role in decisions affecting
environmental policy.
I should note that while these concerns are very serious, they
relate to a fraction of Ms. Schiffer' s management of the
Environment and Natural Resources Division. I do not have adequate
information as to her other activities which would be necessary for
me to take a position as to whether she should be confirmed. I
submit these comments in order to promote a discussion of policy
decisions that I consider to be inconsistent with the public
interest.
•**'l« <M> M% Mii'tif 0 ».»*• *m* 104 ^POU i— ■ *■•*!
304
THE DEPARTMENT OF JUSTICE CURRENTLY ADVOCATES STRICTER
ENFORCEMENT OF THE CLEAN WATER ACT AGAINST PRIVATE POLLUTERS
THAN AGAINST THE GOVERNMENT
The Department of Justice does not follow a common policy in
the suits it brings to enforce the CWA against private polluters
and in its defense of federal polluters who are defendants in
citizen suits brought under the Act. In its defense of government
agencies, the Department frequently makes arguments that directly
conflict with the positions it has taken as a prosecutor. The
result is that the Department is, in effect, advocating stricter
enforcement of the CWA against private polluters than against the
government .
For example, in a case in which my firm is representing
several environmental groups in a CWA citizen suit against the
Department of Energy Facility in Oak Ridge, Tennessee (Friends of
the Earth v. O'Learv. E.D. Tenn., CIV-3-92-036, (hereafter, the
"Oak Ridge Litigation")), the Department of Justice has made the
following arguments:
■ Defendants need not achieve 100 percent compliance
with their CWA permits; rather, a good faith effort to
attain 100 percent compliance is sufficient.
■ An oral or written statement from the Tennessee
Department of Energy and Conservation (TDEC) is
sufficient to modify defendants' permits.
■ Although defendants continue to violate the discharge
limitations of their permits, plaintiffs' complaint is
moot since defendants have taken corrective action
since plaintiffs filed their complaint.
The Department, as a prosecutor, has rejected these same
arguments in CWA cases against private polluters. For example,
with regard to permit compliance, the Department has long
successfully argued that 100 percent compliance is required. See
American Petroleum Institute v. E.P.A.. 540 F.2d 1023, 1036 (10th
Cir. 1976); United States v. Amoco Oil Co.. 580 F.Supp. 1042, 1050
(W.D. Mo. 1984) .
Similarly, the Department has argued, again successfully, that
informal, unilateral actions such as letters from state regulatory
authorities like TDEC are insufficient to modify a permit. See
United States v. Ohio Edison Co.. 725 F. Supp. 928, 933 (N.D. Ohio
1989) ; United States v. Metropolitan District Commission. 23 ERC
1350, 1355 (D. Mass. 1985).
305
The Department has also argued that a defendant bears an
extremely heavy burden in showing mootness. As amicus curiae in
Gwaltney v. Chesapeake Bay Foundation. 484 U.S. 49 (1987), the
Department argued that defendant, although then in full compliance
with its CWA permit, did not establish mootness where it did not
raise its claim of full compliance until nearly one year after the
complaint was filed. In contrast, in the Oak Ridge Litigation,
even though defendants have' ongoing violations, the Department has
claimed mootness.
In addition to taking positions in the Oak Ridge Litigation
which it has rejected in its own enforcement cases, the Department
has taken positions which are inconsistent with EPA policy. Such
positions include the following:
■ A single sample result cannot be used to determine
compliance with a weekly, monthly or quarterly average
limit.
■ Defendants' violations of the discharge limitations of
their permits, including fish kills, have not resulted
in irreparable harm.
These positions are inconsistent with EPA' s position. For
example, the Department's argument that a single sample cannot be
used to determine an average limit would mean that a defendant
would never report an average for a given time period whenever its
CWA permit only required one sample over that period. This
position is in conflict with EPA's NPDES Self -Monitoring System
User Guide (January 1985) . In the instructions for completion of
discharge monitoring reports, the guide states: "'Average' is
normally arithmetic average (geometric average for bacterial
parameters) of all sample measurements for each parameter obtained
during the monitoring period." Id.. , p. 14. Therefore, if a single
sample is taken during a month- long monitoring period, that sample
would be the monthly average. k/
The Department's contention that the pollutants which
defendants discharged in violation of their NPDES permit limits
(e.g. . chromium, zinc, PCBs, and copper) do not cause irreparable
harm also directly contradicts EPA's view of the serious harm
caused by these pollutants. See 52 Fed. Reg. 12889 (April 17,
1987); EPA, Quality Criteria for Water (July 1986).
While these positions were originally taken in briefs filed by
the Department of Justice during the prior Administration, the
Environment and Natural Resources Division has continued to press
1/ The courts do not accept this illogical result either. See,
e.g., Natural Res. Defense Coun. v. Outboard Marine Corp.. 692 F.
Supp. 801, 820-821 (N.D. 111. 1988).
306
these arguments in settlement discussions which have occurred since
Ms. Schiffer has headed the Division. Moreover, the Department of
Justice has insisted on provisions for settlement of the Oak Ridge
Litigation which it never would have accepted in consent decrees
with private polluters. For example, it opposed inclusion of a
provision accepting the jurisdiction of the court in the consent
decree relating to settlement of the Oak Ridge Litigation.
However, it invariably includes such a provision in its consent
decrees with private polluters. Considerably more important, the
Department of Justice insisted on the inclusion of provisions in
the consent decree relating to the Oak Ridge Litigation which allow
the Department of Energy to commit a limited number of violations
of its permits rather than requiring full compliance with the
permits.2'
If the Department is successful in making arguments which
weaken environmental laws in the courts, the result will be to make
it more difficult to enforce the law against both governmental and
private polluters. Even more important, the Department's
inconsistency undermines the integrity of the federal government's
enforcement of environmental laws. It is simply hypocrisy for the
same federal government to demand substantially stricter compliance
with federal environmental laws from private polluters than from
its own facilities. There is no possible reason why environmental
laws should be enforced more strictly against small businesses, for
example, then against the Department of Energy. Indeed, if
anything, federal environmental laws should be enforced more
strictly against the federal government since it should be setting
an example for compliance.
II
THE DEPARTMENT OF JUSTICE IS ALLOWING FEDERAL AGENCIES
THAT ARE THE LARGEST POLLUTERS IN THE COUNTRY FAR TOO
MUCH INFLUENCE IN DETERMINING THE GOVERNMENT'S
ENVIRONMENTAL POLICIES
I am also concerned that government agencies such as the
Department of Energy and Defense seem to have disproportionate
influence in decisions affecting environmental policy. These
departments, as the biggest polluters in the Nation, should not be
in a position to have significant influence over environmental
policy at the Department of Justice.
2/ I personally brought the Department's handling of the Oak Ridge
litigation to the attention of Ms. Schiffer in a December 3, 1993,
letter (attachment 2) . The letter contains specific citations to
government briefs and depositions in which the above discussed
positions were taken. Ms. Schiffer never replied to the letter.
The briefs and depositions referred to are available to the
Committee upon request.
307
For example, the District Court for the District of New Jersey
recently held that, under Section 505(b) of the Water Act and EPA's
regulations regarding the giving of notice by citizen-plaintiffs
(40 C.F.R. 135(a)), the court did not have subject matter
jurisdiction over pre-complaint violations which were not
specifically listed in plaintiffs' 60-day notice letter or over
post -complaint violations which were not of the same type as those
included in the notice letter* Public Interest Research Group of
New Jersey. Inc. v. Hercules Inc.. 830 F. Supp. 1525, 1528-1535
(D.N.J. 1993) . The court therefore dismissed many discharge
violations and all the monitoring, reporting and recordkeeping
violations. Ibid.*' Plaintiffs successfully moved for
interlocutory appeal to the Court of Appeals for the Third Circuit .
After the briefing of the appeal,47 the court of appeals asked
EPA to file an amicus curiae brief regarding the agency's
interpretation of its citizen notice regulations (attachment 4) .
40 C.F.R. 135.3. The Department of Justice, ignoring the fact that
the court asked for EPA's position on the regulations, told the
court that it needed to coordinate the brief with the Departments
of Defense and Energy because those agencies owned facilities that
were subject to citizen suits. Letter, Peter Steenland, Chief,
Appellate Section, Environment and Natural Resources Division,
3_/ The district court decision in Hercules will have extremely
serious consequences on the effectiveness of citizen suits if it is
not reversed on appeal. Monitoring, reporting and recordkeeping
violations are generally only discoverable after suit has been
brought because the discharge monitoring reports filed by
dischargers with EPA and the states generally do not include the
information necessary to determine these violations. These
violations can generally Only be ascertained from the discharger's
laboratory reports, which can only be obtained after suit has been
brought and discovery initiated. Moreover, the laboratory reports
also often disclose additional discharge violations not set forth
in the discharge monitoring reports. Based on the Hercules
decision, the only way citizens will be able to enforce the Act as
to monitoring and reporting violations, and many discharge
violations, is to bring suit, obtain discovery, file a new notice
letter, and then file a new or amended complaint as to the newly
discovered violations. The result will be to complicate, and delay
significantly, citizen suit litigation as well as to prevent many
violations from ever being penalized because of the running of the
statute of limitations.
4/ Prior to the briefing of the appeal, I personally wrote Ms.
Schiffer, asking that the Department of Justice file an amicus
curiae brief in the court of appeals supporting the position of the
citizen-plaintiffs because of the great importance of the district
court's decision to citizen suits under the Water Act (attachment
3) .
308
Department of Justice to P. Douglas Sisk, Clerk, Unites States
Court of Appeals for the Third Circuit, June 27, 1994 (attachment
5) . The amicus brief eventually filed by the Justice Department
contains not a single word setting forth the position of EPA
concerning the meaning of its own regulations. Instead, the brief
explicitly states that it is presenting an overall government
position concerning the meaning of the regulations, including the
positions of the Departments .of Defense and Energy, even though
these two agencies had no part in the promulgation of the
regulations. As a result, the arguments in the Department of
Justice's brief were almost identical with those of Hercules, Inc.,
the defendant. See Brief for the United States as Amicus Curiae,
July 7, 1994 (attachuent 6) .
It is seriously wrong that the biggest polluters in the Nation
should be in a position to exert such influence over environmental
policy decisions by the Division of the Department of Justice
mandated to enforce the federal environmental laws. As the result
of this influence, the Department of Justice, while frequently
paying lip service to its support of citizen suits, is all too
often taking positions that undermine the ability of citizens to
enforce environmental laws.
The issues that I have outlined are extremely important to
future federal enforcement of environmental laws. It is my hope
that the Members of the Committee will explore these issues with
Ms. Schiffer. It is also my hope that this discussion can move the
Nation toward a level playing field where the federal government
abides by the same rules as private industry.
309
March 1993
ENVIRONMENTAL, PRESERVATION, LAND-USE,
AND ZONING MATTERS HANDLED BY
TERRIS, PRAVLIK & WAGNER
(formerly Terris, Edgecombe, Hecker & Wayne and
Terris & Sunderland).
.WATER QUALITY
We have represented the Public Interest Research Group of
New Jersey, Friends of the Earth, Sierra Club, the South Carolina
Coastal Conservation League, Florida Public Interest Research
Group, Pennsylvania Public Interest Research Group, New York
Public Interest Research Group, Trout Unlimited, the Foundation
for Global Sustainability, and the Atlantic States Legal
Foundation in more than 75 citizen suits brought under the Clean
Water Act to enforce industrial discharge permits in New Jersey,
New York, South Carolina, Tennessee, Florida, and West Virginia.
Under the Act, permittees must monitor and report their
discharges on a regular basis and are strictly liable for any
violations of discharge limits and monitoring and reporting
requirements. The suits request civil penalties for past permit
violations and injunctive relief to ensure future compliance.
Suits have been filed against industries which discharge directly
to navigable waters and which discharge indirectly to such waters
through municipal treatment plants.
We have obtained court decisions on- a number of issues of
first impression in citizen suits under the Act, including: (1)
the first decision awarding summary judgment on liability issues
(SPIRG v. Monsanto Co.. 600 F. Supp. 1479 (D.N.J. 1985)); (2) the
first decision upholding the constitutionality of the citizen
suit provisions of the Act (SPIRG v. Monsanto Co. , 600 F. Supp.
1474 (D.N.J. 1985)); (3) the first decision holding that only
judicial, not administrative, actions by government agencies can
preclude a citizen suit for the same violations (Friends of the
Earth v. Consolidated Rail Corp.. 768 F.2d 57 (2d Cir. 1985));
(4) the first decision granting a preliminary injunction against
further permit violations (PIRG v. Top Notch Metal Finishing Co.,
26 ERC 2012 (D.N.J. 1987)); (5) the first decisions imposing the
then statutory maximum civil penalty of $10,000 per violation
(SPIRG v. Monsanto Co.. 29 ERC 1988 (D.N.J. 1988), SPIRG v.
Hercules. Inc. , 29 ERC 1417 (D.N.J. 1989), PIRG v. Powell Duffryn
Terminals, Inc. . 720 F. Supp. 1158 (1989), affirmed, 913 F.2d 64
(3d Cir. 1990), certiorari denied, 111 S. Ct. 1018 (1991)); (6)
the first decision imposing contempt penalties for violation of a
consent decree (PIRG v. Ferro Merchandising Corp. . 26 ERC 1362
(D.N.J. 1987)); and (7) the first injunction obtained by citizens
against a federal facility for violations of the Act (PIRG v.
Rice. 774 F. Supp. 317 (D.N.J. 1991)).
We have been successful in obtaining relief against
federal, state, and municipal facilities as well as private
310
facilities. In addition to obtaining an injunction requiring
compliance with the Act at McGuire Air Force Base (PIRG v. Rice.
supra) , we have secured consent decrees ensuring permit
compliance at two Army facilities and four state facilities. We
are currently litigating cases involving six additional
government facilities, including three facilities at the federal
government's massive nuclear research complex at Oak Ridge
National Laboratories in Tennessee.
Judgments for civil penalties and settlement payments in
these cases amount to $31 million. These include the highest
settlement in a citizen suit, PIRG v. Witco Chemical Corp.
($10,000,000), the two highest civil penalties ever imposed by a
court in citizen suits (PIRG v. Powell Duffryn Terminals. Inc. ,
supra ($4,085,000 after remand); SPIRG v. Hercules, Inc.. supra
($1,680,000)) .
In SPIRG v. AT&T Bell Laboratories. 842 F.2d 1436 (3d Cir.
1988), the court held that the community market rate, rather than
the firm's actual billing rate, was the proper measure of
attorneys' fees in such citizen suits. The court found that the
firm "performed excellent work" and that its billing rates fell
"far short of what the Terris firm- could command in the
marketplace." Id. at 1442, 1445.
In 1991, Bruce Terris testified before the Commissioner of
the New Jersey Department of Environmental Protection and Energy
concerning its new penalty regulations implementing the New
Jersey Clean Water Enforcement Act of 1990. In addition, the
firm has provided informal assistance to NJDEPE in developing
methods of incorporating into penalties the recovery of economic
benefits enjoyed by polluters which delay implementing pollution
control measures.
In Chesapeake Bay Foundation v. United States, we
represented citizens organizations which challenged the granting
of a state-issued NPDES permit for a refinery in the Hampton
Roads area of Virginia. The grounds included the failure to
prepare an environmental impact statement, to assure that water
quality standards would be met, and to comply with procedural
requirements of the Clean Water Act. The district court held
that an environmental impact statement was not required (445 F.
Supp. 1349 (E.D. Va. 1978)) and that there was no cause of action
in federal court (495 F. Supp. 1229 (1980); 501 F. Supp. 821
(1980)) .
We have represented the Province of Ontario in judicial and
administrative proceedings concerning the Clean Water Act
discharge permit for the City of Niagara Falls wastewater
treatment plant. The New York Department of Environmental
Conservation first issued a renewal permit in 1982. We prepared
comments on the draft permit and intervened on behalf of Ontario
311
in New York state court when the permit was challenged by the
City and industry groups. The permit was vacated by the court on
procedural grounds. Industrial Liaison Committee v. Flacke. 479
N.Y.S.2d 696 (S.Ct. Albany Cty. 1984), affirmed, 485 N.Y.S.2d 662
(3d Dept. 1985) . After the state issued a new draft permit in
1987, Ontario was granted party status by DEC to challenge this
permit. We are representing Ontario in negotiations with EPA
concerning a new permit for- the plant. We have also represented
Ontario as an intervenor in related litigation brought by the
City and other parties in New York state court challenging a DEC
regulation which authorized technology-based permit limits for
municipal treatment plants. Buffalo Sewer Authority v. DEC.
WATER SUPPLY
We advised a Florida landowner on legal strategies for
limiting growth and relieving pressure on Florida's limited water
supply. Our analysis examined municipal water franchise agree-
ments, state water regulations and statutes, the federal Safe
Drinking Water Act relating to underground aquifers, and
statutes affecting the Everglades National Park.
AIR QUALITY
In State of New York v. Thomas. 613 F. Supp. 1472 (D.D.C.
1985), reversed, 802 F.2d 1443 (D.C. Cir. 1986), certiorari
denied, 482 U.S. 919 (1987), we represented the Province of
Ontario, Canada, as an intervenor in a case brought by the
northeastern states to force EPA to require states to revise
their Clean Air Act implementation plans to eliminate pollution
causing acid rain in Canada. The district court ordered EPA to
issue notices to the polluting states, but the court of appeals
reversed on the ground that the notices could not issue unless
EPA first conducted a rulemaking proceeding on the issue of
whether the states' pollution was endangering Canada. We then
petitioned EPA to conduct this rulemaking proceeding. After EPA
refused to do so, we petitioned the court of appeals to require
EPA to begin the rulemaking process. Her Majesty the Queen in
Right of Ontario v. EPA. The court of appeals held that EPA was
not required to make findings as to the endangerment to Canada
and as to Canada having equivalent regulations as the United
States until it had adequate information to issue notices to the
states to remedy the situation. 912 F.2d 1525 (D.C. Cir. 1990).
The Court further held that, even though 10 years had elapsed
since the first petition to EPA, EPA's future to act on the
petitions was not arbitrary and capricious. However, the court
suggested that EPA might have to act after issuance of the
report of the Natural Acid Precipitation Assessment Program in
late 1990. Before that occurred, Congress enacted a
comprehensive acid rain program in the Clean Air Act Amendments
Of 1990.
312
We also represented the Province of Ontario before EPA in a
proceeding under Section 126 of the Clean Air Act to consider
claims by the States of New York, Pennsylvania and Maine that
midwestern pollution is being transported long distances and is
causing acid rain in the northeast. The sources at issue in that
proceeding are the same as those that are causing acid rain in
Ontario. EPA denied the petition. We have advised the Province
generally as to legislative,- administrative, and litigation
strategies to deal with the acid rain problem, including the acid
rain regulations issued under the 1990 Clean Air Act amendments.
In Sierra Club v. Fri. 344 F. Supp. 253 (D.D.C. 1972),
affirmed, 4 ERC 1815 (D.C. Cir. 1972), affirmed by an equally
divided Court, 412 U.S. 451 (1973), the Supreme Court held that
the Clean Air Act requires that air quality in areas still having
clean air must be protected from significant deterioration as
well as that air quality must be improved in areas with heavily
polluted air. The district court ordered the government to pay
more than $50,000 in attorneys' fees to the plaintiffs. As a
result of this case, EPA issued regulations for the prevention of
significant deterioration (PSD) of air quality in clean air
areas and subsequently Congress adopted a PSD program.
In Sierra Club v. EPA, 540 F.2d 1114 (D.C. Cir. 1976), re-
manded, 434 U.S. 809 (1977), we unsuccessfully challenged EPA's
regulations on significant deterioration as not providing
adequate protection for clean air. However, we were successful
as intervenors in the related cases brought by industry
challenging the power of EPA to issue regulations since the court
of appeals upheld the regulations.
EPA determined that certain PSD provisions of the 1977 Clean
Air Act Amendments would not apply to sources which obtained PSD
permits before March 1, 1978, and which began construction before
March 19, 1979. The most significant of these provisions was the
requirement that new sources use the "best available control
technology" determined on a case-by-case basis to limit emis-
sions. Representing the Northern Cheyenne Tribe, Sierra Club and
Friends of the Earth, we petitioned the court to require EPA to
implement the PSD Amendments as of their enactment, August 7,
1977. We also intervened to oppose industry's attempt to
postpone the effective date even further than EPA wanted. The
court of appeals rejected both the environmental and industry
attacks on EPA's implementation of the PSD provisions of the
Amendments. Citizens to Save Spencer County v. EPA. 600 F.2d 844
(D.C. Cir. 1979). EPA agreed to pay a portion of our attorneys'
fees.
We advised the Northern Cheyenne Tribe throughout the pro-
ceedings it and EPA held to redesignate its reservation as a
Class I air quality area under the significant deterioration
regulations. Aft»r EPA approved the redesignation, various elec-
313
trie utilities and other parties challenged EPA's decision. In
Nance v. EPA. 645 F.2d 701 (9th Cir. 1981), the court approved
the redesignation. We represented the Tribe as intervenors in
this litigation. The government agreed to pay a portion of the
attorneys1 fees in this case.
In Montana Power Co. v. EPA, several utilities brought suit
seeking to invalidate the determination of EPA that the Colstrip
power plant was subject to -EPA's prevention of significant
deterioration regulations. We represented the Northern Cheyenne
Tribe and Northern Plains Resource Council as intervenors in
support of EPA. The district court held that EPA's application
of its PSD regulations to the plant was arbitrary and capricious.
While the district court's decision was on appeal, the 1977
Amendments to the Clean Air Act were passed, and EPA concluded
that, regardless of its previous regulations, the PSD
requirements of the 1977 Amendments applied to the plant. The
utilities then petitioned for review of EPA's new determination,
and the Tribe and Council again intervened. The two cases were
consolidated before the court of appeals, which held that the
Colstrip power plant was subject to the PSD regulations. 429 F.
Supp. 683 (D.^Moht. 1977), reversed, 608 F.2d 334 (9th Cir.
1979).
We represented the Northern Cheyenne Tribe and the Northern
Plains Resource Council in EPA's extensive proceedings concerning
the Montana Power Company's application for a PSD permit under
the Clean Air Act for the Colstrip power plant which the company
claimed met the Class I increments of the PSD program. After EPA
initially proposed to grant the permit, we persuaded EPA to
reject it. The utilities petitioned for review in the Court of
Appeals for the Ninth Circuit. Puget Sound Power and Light
Company v. EPA. We represented the Northern Cheyenne Tribe and
Northern Plains Resource Council which intervened. Subsequently,
the company made a new application to EPA, which provided for
substantially better air pollution controls, and this application
was approved. The utilities dismissed their case after they
entered into a settlement with the Tribe under which the Tribe
received jobs, air-quality monitoring, and financial assistance
to compensate for the impacts of the plant on the reservation.
We represented the Roosevelt Campobello International Park
Commission in a petition to review EPA's approval of a PSD permit
for an oil refinery in Eastport, Maine. The court retained
jurisdiction of the petition until EPA promulgated new rules
which would allow the refinery to be exempt from the 1977
Amendments to the Clean Air Act. Roosevelt Campobello
International Park Commission v. EPA. 684 F.2d 1034 (1st Cir.
1982) . We also represented the Commission in a petition to
review the existing rules for grandfathering new sources under
the pre-1977 Clean Air Act. Roosevelt Campobello International
Park Commission v. EPA. The refinery has never been built.
314
We represented Citizens Against the Refinery's Effects and
the Chesapeake Bay Foundation in opposing a refinery in the
Hampton Roads area of Virginia. In one case, we challenged EPA's
decision to approve a revision to Virginia's State Implementation
Plan which established an asphalt substitution program to offset
hydrocarbon emissions from the refinery, on the grounds that the
offset was inconsistent with the Clean Air Act and with EPA's
Emission Offset Interpretative Ruling under that Act. In the
other case, we challenged EPA's decision to issue a PSD permit
for the refinery on the ground that EPA violated the Clean Air
Act and its own regulations when it analyzed the modeling and
monitoring data to predict the air guality impact of the
facility. The court of appeals held for EPA in both cases.
Citizens Against Refinery Effects v. EPA. 643 F.2d 178, 183 (4th
Cir. 1981) . However, the refinery proposal was abandoned.
We advised a citizens group in Wilmington, North Carolina,
which opposed construction of an oil refinery proposed by the
Brunswick Energy Company. Our analysis related to the
compatibility of the refinery with the North Carolina Coastal
Area Management Act, the Clean Air -Act, and NEPA. We recommended
focusing on the lack of a demonstrated need for oil refineries in
the face of current U.S. demand for oil. The project was
abandoned by the company on the basis of the reduced demand for
oil products through the year 2000.
In Vavra v. EPA, we filed a petition in the Supreme Court on
behalf of citizens residing near Galveston Bay, Texas, seeking
review of a decision by the court of appeals that EPA's
conditional approval of the State of Texas' revisions to its
state implementation plan and its resulting refusal to apply the
Act's construction ban did not violate the Clean Air Act even
though, according to EPA, the revisions did not fully comply with
the Act. The Supreme Court denied the petition for certiorari.
459 U.S. 822 (1982) .
In Citizens' Ass'n of Georgetown v. Washington. 370 F. Supp.
1101 (D.D.C. 1974), the court denied claims by a local citizens'
organization that construction of an urban commercial development
would result in increased traffic and thereby cause a violation
of the Clean Air Act. While the district court subseguently
ordered the District of Columbia government to pay one third of
the attorneys' fees of plaintiffs (383 F. Supp. 136 (D.D.C.
1974)), the court of appeals ruled that the district court lacked
jurisdiction to award fees to nonprevailing parties under the
Clean Air Act (535 F.2d 1318 (D.C. Cir. 1976)).
On behalf of Group Against Smog and Pollution (GASP) in
Pittsburgh, we submitted comments to EPA opposing the deferral of
Jones & Laughlin Steel's obligation to meet coke oven gas emis-
sions limitations at its Pittsburgh Works. Jones & Laughlin
315
applied to EPA in November 1981 under the Steel Industry
Compliance Extension Act of 1981 for an extension of the deadline
stipulated in its consent decree for repairing its coke oven gas
desulfurization system. EPA denied Jones & Laughlin's
application and filed a contempt action against the company for
its failure to comply with the consent decree. See United States
v. Jones & Lauqhlin Steel Corp., 804 F.2d 348 (6th Cir. 1986).
We represented residents in Frederick County, Maryland, in
opposing the expansion of a fluoride-emitting aluminum reduction
facility in that area in hearings before the state health de-
partment.
We prepared extensive legal analysis, comments and draft
documents for the State of New Jersey protesting the failure of
the City of Philadelphia to regulate excessive emissions of
sulfur dioxide.
We represented the National Coalition for Clean Air and the
Northern Cheyenne Tribe in support of Congressional legislation
which would effectively prevent significant deterioration of air
guality in clean air areas. This -work included Congressional
testimony and the drafting of statutory language. In 1977,
Congress adopted Clean Air Act Amendments embodying most of the
provisions we supported.
We prepared a legal analysis of the air-quality implications
of the use of refuse-derived fuels as a substitute for fossil
fuels in utility and industry boilers for the Brookhaven
National Laboratory and the Princeton Center for Environmental
Studies.
Bruce Terris was co-chairman of the Air Quality Task Force
of the National Coal Policy Project which was an effort to obtain
the agreement of environmentalists and industry on issues re-
lating to coal development. Other members of the office did much
of the environmental staff work for the Task Force. The report
was published as Where We Agree, Report of the National Coal
Policy Project.
TOXIC WASTES
We are advising and representing the Province of Ontario on
toxic waste issues involving the area near the Niagara River.
In United States v. Hooker Chemicals & Plastics Corp. , 101
F.R.D. 444 (W.D.N.Y. 1984), the court granted Ontario's motion to
intervene to challenge a proposed settlement of an action
involving a hazardous waste site next to the Niagara River.
However, the court rejected Ontario's arguments that the
settlement agreement violated public policy by not requiring a
316
long-term, permanent remedy at the site. 607 P. Supp. 1052
(W.D.N.Y. 1985), affirmed, 776 F.2d 410 (2d Cir. 1985).
We have represented the Province of Ontario in state
proceedings regarding permits for two hazardous waste landfills
near the Niagara River. At the SCA landfill in Model City,
Ontario's participation led to an agreement to perform improved
groundwater monitoring and studies regarding the appropriate
cover for final closure. At the CECOS landfill in Niagara Falls,
Ontario participated in a lengthy hearing before the New York
Department of Environmental Conservation in which Ontario
contended that the hydrogeological conditions at the site were
inadequate. The DEC agreed and denied CECOS' application for a
permit to expand its landfill operations. We also continue to
advise the Province as to developments concerning other hazardous
waste disposal areas which may affect the Niagara River.
In United States v. Westinghouse Electrical Corp. (N.D.
Ind.), we represented the Indiana Public Interest Research Group
which sought to intervene to challenge a proposed settlement of a
suit brought by the federal government under Section 7003 of the
Resource Conservation and Recovery Act concerning Westinghouse' s
generation and improper disposal of polychlorinated biphenols
(PCBs) and other hazardous waste. The district court denied the
motion on the ground that InPIRG had delayed too long in seeking
to intervene.
We represented a citizens group in Buckingham County,
Virginia, before the county Planning Board on issues concerning
the continued operation and expansion of an existing toxic waste
disposal facility and the potential construction of other such
facilities in the county.
WILDLIFE
Sierra Club v. Hickel involved an exchange of land between
the Fish and Wildlife Service and a utility company for the
construction of a nuclear power plant. The court of appeals held
that the exchange did not violate various wildlife statutes (476
F.2d 1048 (6th Cir. 1972)) and the Supreme Court denied our peti-
tion for a writ of certiorari (411 U.S. 920 (1973)).
In Wilderness Society v. Hathaway, the wilderness Society
challenged the transfer of three large western game ranges from
joint Fish and Wildlife Service and Bureau of Land Management
administration to the sole administration of BLM. The district
court held that the Secretary of the Interior had no authority to
transfer the game ranges from the jurisdiction of the Fish and
Wildlife Service and that the lack of an environmental impact
statement violated NEPA. 5 ELR 10118 (D.D.C. 1975). Congress
subsequently enacted a statute placing the ranges under the sole
jurisdiction of the Fish and Wildlife Service.
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317
Society for Animal Rights v. Schlesinger involved the mass
killing of millions of blackbirds in Kentucky and Tennessee by
chemical spraying in alleged violation of NEPA, the Migratory
Bird Act and other statutes. After the court refused to transfer
the case and a preliminary injunction was denied (512 F.2d 915
(D.C. Cir. 1975)), the Fish and Wildlife Service agreed to
prepare a comprehensive- environmental impact statement on the
program and not to provide the chemical to kill blackbirds until
the statement was finished. Congress subsequently passed a
statute amending NEPA, partially nullifying the agreement, and
allowing the chemical to be used prior to completion of the
environmental statement.
We represented the Audubon Society at EPA meetings
concerning the use of pesticides against blackbirds in Tennessee
in violation of the federal pesticide laws.
In Sierra Club v. Andrus. 395 F. Supp. 1187 (D.D.C. 1975),
the district court held that NEPA required preparation of an
environmental impact statement on the annual budget of the
National Wildlife Refuge System because budgetary decisions have
a substantial effect on the management of the refuges. The court
of appeals agreed that environmental statements must be prepared
on budget proposals and ordered the Office of Management and
Budget to issue regulations concerning the preparation of such
environmental statements. 581 F.2d 895 (D.C. Cir. 1978).
However, it required statements to be prepared on budget requests
only when they make significant changes in the status quo and not
on an annual basis. The Supreme Court reversed and held that
NEPA does not require the preparation of environmental impact
statements on the budgets of federal agencies. 442 U.S. 347
(1979). The Court also stated, however, that environmental
statements are required on any programmatic decisions related to
the budget. Other counsel represented the Sierra Club in the
Supreme Court.
Defenders of Wildlife v. Andrus. 428 F. Supp. 167 (D.D.C.
1977) , involved the validity of the shooting hours in the
waterfowl hunting regulations of the Fish and Wildlife Service.
The district court held that the shooting hours were invalid
because they were not based on adequate studies showing that they
protected migratory birds.
National Rifle Ass'n of America, Inc. v. Kleppe. 4 25 F.
Supp. 1101 (D.D.C. 1976), affirmed, 571 F.2d 674 (D.C. Cir.
1978) , involved the validity of the regulations issued by the
Fish and Wildlife Service to reduce the use of lead shot in duck
hunting. We represented Defenders of wildlife as intervenors in
support of the Service. The court upheld the regulations.
318
Conner v. Andrus involved a challenge in the District Court
for the Western District of Texas to Fish and Wildlife Service
regulations prohibiting all duck hunting in designated areas of
New Mexico and Texas. We represented Defenders of Wildlife in an
unsuccessful attempt to intervene in support of the validity of
the regulations.
We represented the' Roosevelt Campobello International Park
Commission in adjudicatory proceedings before EPA regarding EPA's
decision to disapprove an NPDES permit for a refinery in
Eastport, Maine. The issues chiefly involved the navigational
risks and the threat of oil spillage to the bald eagle and
whales, which are endangered species. The Administrative Law
Judge approved the permit. The court of appeals held that the
ALJ did not have the best available scientific evidence
concerning the risk of oil spills and required certain studies
before a decision could properly be made to approve a permit.
The court also held that these additional studies concerning risk
would have to be addressed in a supplemental environmental impact
statement. Roosevelt Campobello International Park Commission v.
EPA. 684 F.2d 1041 (1st Cir. 1982).
We represented the Roosevelt Campobello International Park
Commission as intervenors when the Pittston Company applied for
an exemption from the Endangered Species Act to the Endangered
Species Review Board relating to its proposed refinery. That
proceeding was dismissed, however, when the court found that the
company's application for an exemption was premature. Pittston
Co. v. Endangered Species Committee. 14 ERC 1257 (D.D.C. 1980).
North Slope Borough v. Andrus. which is discussed elsewhere
in this memorandum, involved the protection of endangered species
of whales under the Endangered Species Act.
HIGHWAYS
Upper Pecos Ass'n v. Peterson involved a challenge to con-
struction of a road through a national forest in New Mexico to be
constructed with funds granted by the Department of Commerce, on
the ground that the environmental impact statement required by
NEPA was not prepared prior to the grant of funds. We prepared
the petition for a writ of certiorari, which was granted by the
Supreme Court. 406 U.S. 944 (1972). The government then agreed
to preparation of a new environmental impact statement and
reconsideration of the project on the basis of it.
Smeltzer v. Adams involved whether the proposed construction
of a highway in north-central Iowa violated NEPA and Section 4(f)
of the Department of Transportation Act. The court held that the
Department of Transportation was required to prepare an
environmental statement before the highway could be built
analyzing its cumulative impact and that the site-specific
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319
environmental statement for a 20-mile segment of the highway was
inadequate. 11 ERC 1367 (N.D. Iowa 1978). A new EIS was
prepared which the district court held was adequate under NEPA.
•
Farmland Preservation Ass'n v. Goldschmidt involved whether
the proposed construction of an interstate highway in east-
central Iowa violated NEPA. Plaintiffs, a coalition of farmers,
asserted that the EIS inadequately considered alternatives,
failed to consider the cumulative impact of constructing the
entire interstate highway, and inadequately analyzed secondary
impacts. The district court held that the environmental
statement was adequate and the court of appeals affirmed. 491 F.
Supp. 601 (N.D. Iowa 1979), affirmed, 611 F.2d 233 (8th Cir.
1979).
In National Wildlife Federation v. Adams, we brought suit in
the District of Columbia on behalf of national environmental
groups and local landowners challenging the construction of a
highway in Kitsap County, Washington, on the grounds that the
President's Executive Order 11990 relating to wetlands, NEPA,
and a military construction statute had been violated. After
the suit was transferred to a different district, other counsel
assumed responsibility for the case. The district court denied
plaintiffs' motion for a preliminary injunction and summary
judgment and the decision was affirmed on appeal. 13 ERC 1343
(W.D. Wash. 1979), affirmed, 629 F.2d 587 (9th Cir. 1980).
We have advised the Sierra Club concerning its participation
in highway litigation in the City of Baltimore, a citizens group
concerning possible highway litigation in Baltimore County, an
individual concerning highway litigation in northern Virginia,
and a group of farmers in Iowa regarding their rights to addi-
tional connector roads to a proposed freeway.
AIRPORTS
In Citizens Against Burlington. Inc. v. Busev. 938 F.2d 190
(D.C. Cir.), certiorari denied, 112 S. Ct. 616 (1991), the firm
represented a citizen group which challenged the approval of the
Federal Aviation Administration of an Airport Layout Plan for a
cargo hub in Toledo, Ohio. Petitioners claimed in the court of
appeals that the approval is invalid because the environmental
impact statement failed to analyze adequately alternative sites
for this hub or the noise impact of its operations. The court of
appeals held that the EIS was adequate because it discussed the
alternatives of approving the expansion and not approving it and
that the EIS did not have to discuss alternative locations in
depth. The court also held that while the FAA violated the
regulations governing environmental impact statements by
publishing an EIS prepared largely by a contractor the FAA itself
did not select, the violation did not warrant invalidating the
EIS. We did not represent the petitioners in the Supreme Court.
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320
In State of Missouri v. Coleman, we represented HUSTLE, a
group of Illinois farmers and other concerned residents who
intervened in order to oppose the construction of a new airport
in the Columbia Waterloo area of Illinois to serve the St. Louis
region. While the district court rejected our position (427 F.
Supp. 1252 (D.D.C. 1977)), the Secretary of Transportation was
persuaded to disapprove further federal funding for the new
airport and it was not built.
RAILROADS
Sierra Club v. ICC involved the decision of the Interstate
Commerce Commission to approve a 130-mile railroad to facilitate
coal development in northeastern Wyoming. The court held that
the ICC decision violated NEPA and remanded the case to the
agency. 11 ERC 1241 (D.C. Cir. 1978). Subsequently, however,
the court en banc withdrew its earlier decision and ordered the
case to be heard before the entire court of appeals. In light of
the construction that had already occurred on the rail line and
the small probability that further litigation would prevent the
completion of the line, the Sierra Club chose to dismiss the
appeal.
We represented a Wyoming landowner and the WyoBraska
Landowners Association, an organization of Wyoming and Nebraska
farmers and ranchers, challenging the application of the Chicago
and Northern Western Transportation Company to the Interstate
Commerce Commission for authority to construct and operate a new
56-mile rail line in Wyoming and Nebraska. The Commission
approved the line. The court of appeals upheld the Commission's
approval, but stressed that the mitigating measures ordered by
the ICC were to be taken seriously by the railroad and could be
enforced by the landowners. Mobil Oil Corp. v. ICC, 685 F.2d 624
(D.C. Cir. 1982).
We represented the Northern Plains Resource Council in pro-
ceedings before the Interstate Commerce Commission challenging a
proposed 89-mile rail line to the Powder River Basin in Montana.
NPRC contended, in part, that the railroad proposal violated the
Mineral Leasing Act because the railroad's backers planned to
transport coal from their own federal coal leases on the rail
line. The ICC first agreed with NPRC that the issue was a signi-
ficant one requiring a hearing. After the hearing, an ICC ad-
ministrative law judge accepted many of NPRC's contentions but
ultimately concluded there was no statutory violation.
NUCLEAR POWER
In Peshlakai v. Duncan, we represented 89 Navajo Indians
and Friends of the Earth in an action seeking to force six
federal agencies to prepare national, regional and site-specific
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environmental impact statements on the mining and milling of
uranium. The district court denied a temporary restraining
order and preliminary injunction as to a small in situ mining
project. 476 F. Supp. 1247 (D.D.C. 1979).
We participated at EPA hearings on thermal standards to be
used at the Calvert Cliffs' nuclear power plant.
We advised a local citizens group in the Staunton River area
of Virginia concerning its opposition to the construction of a
pump storage and nuclear power complex.
We prepared an extensive analysis for the Natural Resources
Defense Council of the legal requirements for the supplemental
environmental impact statement on the proposed Clinch River
Liquid Metal Fast Breeder Reactor and concerning the inadequacy
of the existing impact statement. The Nuclear Regulatory
Commission determined that a supplemental impact statement was
required.
GEOTHERMAL ENERGY
We represented the Santa Clara Pueblo in hearings held by
the Department of the Interior concerning an environmental impact
statement on a proposed geothermal demonstration project in New
Mexico. We also submitted comments for the Pueblo to the
Department of the Interior which analyzed the Department's docu-
ments on the impact of the project on the Pueblo's religion. The
state air board rejected an industry proposal which would have
greatly relaxed state hydrogen sulfide emission standards and
thereby allowed expanded geothermal development. We also
prepared a legal memorandum for the Pueblo on geothermal leases
entered into by the Department of Agriculture in a national
forest. The proposed geothermal demonstration project was later
abandoned.
OTHER ELECTRIC POWER GENERATION AND TRANSMISSION
In Concerned Citizens United v. Kansas Power and Light,
which was brought in Kansas state court, plaintiffs contended
that, under Kansas law, an electric utility could not condemn
land for a coal-burning powar plant because it did not have
proper zoning and could not show that it would be able to
comply with various land, air and water quality laws. The
Kansas Supreme Court rejected plaintiffs' position. 215 Kan.
218, 523 P. 2d 755 (1974). However, as a result of this
litigation, the Kansas legislature passed a new statute
prohibiting condemnation of land until the condemnor has shown
that it can comply with relevant laws.
In Woida v. United States, we brought suit under NEPA and
the Rural Electrification Act on behalf of a coalition of
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citizens groups in Minnesota and North Dakota which opposed the
construction of a large electric generating plant, an associated
strip mine, and approximately 500 miles of extra-high voltage
electric transmission lines. Plaintiffs sought an injunction
against further construction of the unbuilt portions of the
transmission lines and the microwave communications system
associated with the project on the ground that the environmental
impact statement was inadequate. The motion for a preliminary
injunction was denied. 446 F. Supp. 1377 (D. Minn. 1978).
We analyzed for Friends of the Earth whether the Laramie
River in Wyoming is a navigable river, requiring Army Corps of
Engineers approval for the building of a power plant which would
use its waters.
We advised a local citizens group in Utah which opposed
construction of the Intermountain Power Project, a massive coal-
fired generating plant. Our analysis focused on arguments under
NEPA, the Federal Land Policy and Management Act, the Endangered
Species Act, and the Clean Air Act.
Bruce Terris gave an address on public participation in
energy-related decision-making sponsored by the National Science
Foundation.
LIQUID NATURAL GAS
We participated in extensive adjudicatory proceedings before
the Federal Power Commission and Federal Energy Regulatory
Commission concerning applications to import and store liquid
natural gas (LNG) in a terminal on Staten Island on the ground
that the transportation and storage of LNG in a highly populated
area is too dangerous. The facility has never been used for LNG.
We drafted bills concerning the appropriate location of
LNG facilities and liability for any harm caused to persons or
property due to accidents involving these facilities.
SYNTHETIC FUELS
Bruce Terris was a member of the Advisory Panel on Synthetic
Fuels to the House Science and Technology Committee in 1979-1980.
The Committee investigated the environmental and other problems
concerning the development of synthetic fuels. We wrote papers
for the Panel on the effect of environmental regulations on the
development of synthetic fuels and on fast-track legislation for
speeding government consideration of projects affecting the
environment which were then pending in Congress.
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COAL DEVELOPMENT
Sierra Club v. Morton was brought on behalf of the Sierra
Club, National Wildlife Federation and rancher organizations in
Montana and South Dakota to prevent the Department of the
Interior and other federal agencies from issuing coal leases,
entering into water options, or taking other actions related to
coal development in the Northern Great Plains without preparing
an environmental impact statement analyzing the impact of
development on the entire region. The district court rejected
our contentions. 421 F. Supp. 638 (D.D.C. 1974). The court of
appeals held that, if the federal government continued with its
huge coal development in the Northern Great Plains, a
comprehensive environmental statement had to be prepared. 514
F.2d 856 (D.C. Cir. 1975) . The Department of the Interior then
agreed to prepare a series of subregional environmental
statements on coal development in various parts of the country.
The Supreme Court reversed the decision of the court of appeals
and held that the subregional statements satisfied NEPA. 427
U.S. 390 (1976). In doing so, it affirmed the requirements of
NEPA as to comprehensive environmental statements when various
governmental actions are interrelated.
Cady v. Morton was brought by a number of Montana ranchers
to challenge the Department of the Interior's approval of a
mining plan for a strip mine in Montana. The court held that
NEPA required that an environmental impact statement be prepared
on the entire 30,000 acres leased for a strip mine, rather than
just on the first small portion of the mine, and ordered
reconsideration of the lease on the basis of the new EIS. 527
F.2d 786 (9th Cir. 1975).
In NRDC v. Hughes, we represented the Natural Resources
Defense Council, the Environmental Defense Fund and western
environmental organizations in a suit which resulted in a
decision that the programmatic environmental impact statement
prepared by the Department of the Interior on the entire federal
coal leasing program was inadequate. The court's order limited
federal coal leasing pending the completion of an adequate
programmatic statement. 437 F. Supp. 981 (D.D.C. 1977); 454 F.
Supp. 148 (D.D.C. 1978) . The plaintiffs and the Department of
the Interior then agreed to a settlement in which slightly more
leasing was permitted and the government dismissed its appeal.
The case was appealed by industry intervenors. While their
appeal was pending, the Department of the Interior issued its new
environmental impact statement on the federal coal leasing
programs. The appeal was then dismissed as moot.
In NRDC v. Berklund. 458 F. Supp. 925 (D.D.C. 1978),
affirmed, 609 F.2d 553 (D.C. Cir. 1979), we represented the
Natural Resources Defense Council and the Environmental Defense
Fund in a suit challenging the position of the Department of the
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Interior that the Secretary has no discretion to deny a
preference right lease even if the lease would result in severe
environmental harm. The district court held that environmental
impact statements had to be prepared before the Department could
enter into major leases and that it could consider environmental
factors in deciding whether there were commercial quantities of
coal to lease. However, the court further held that, if there
were commercial quantities -of coal, the Secretary had no
authority to refuse to lease on environmental or other grounds.
Bruce Terris wrote, with Eleanor Granger, a law review
article on federal coal leasing. Granger and Terris, The Leasing
of Federal Land for Coal Production, 15 Houston L. Rev. 1175
(1978) .
OIL DEVELOPMENT
In North Slope Borough v. Andrus. we brought suit on behalf
of Inupiat natives on the North Slope of Alaska against an oil
and gas sale in the Beaufort Sea because of the threat to bowhead
whales and other native subsistence resources. Although the
district court initially denied our request for a preliminary
injunction (486 F. Supp. 326 (D.D.C. 1979)), the court later
upheld several of our claims under the Endangered Species Act and
NEPA and enjoined actions to consummate the sale or carry out
pre-exploratory activities (486 F. Supp. 332 (1980)). After all
parties appealed, the court of appeals lifted the injunction and
upheld the legality of the lease sale. 642 F.2d 589 (D.C. Cir.
1980). In the meantime, however, the Department of the Interior
issued a new biological opinion giving more protection to bowhead
whales from oil development activities. Subsequently, the
district court ordered the government to pay the Borough's
attorneys' fees. 515 F. Supp. 961 (D.D.C. 1981). However, the
order was vacated by the court of appeals. 689 F.2d 222 (D.C.
Cir. 1982).
In North Slope Borough v. Hammond, we brought suit against
the state portion of the same Beaufort Sea oil and gas sale in
Alaska Superior Court, raising claims under state law. While
that court and the Alaska Supreme Court denied a preliminary
injunction, the Superior Court subsequently held that the state
failed to explain adequately its reasoning as to why the sale
would not harm the Alaskan natives and enjoined activities to
develop the leases. The injunction was stayed by the Alaska
Supreme Court. After the state issued a new decision document,
the Superior Court again enjoined lease activities, holding that
the state lacked sufficient information to conclude that oil
development outside the barrier islands would not harm the
subsistence lifestyle of the Alaskan natives. North Slope
Borough v. Hammond. 17 ERC 1656 (1980). The Alaska Supreme Court
reversed the Superior Court's holding on this issue, but held
that the state had failed to make adequate findings under its
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325
Coastal Zone Management Act and remanded the case for further
administrative proceedings. 645 P. 2d 750 (1982). The state
agreed to pay a portion of the attorneys' fees in this case.
We filed a petition for review on behalf of the North Slope
Borough challenging the Secretary of the Interior's five-year
plan for offshore oil and gas development on the ground that it
failed to carry out his- trust responsibilities to Alaskan
natives. The court of appeals rejected the Borough's arguments,
but held that the plan was invalid under the Outer Continental
Shelf Lands Act on grounds raised by other challengers. State of
California v. Watt. 668 F.2d 1290 (D.C. Cir. 1981). The court of
appeals remanded the program to the new Secretary of the Interior
for revision. After issuance of the revised program, the Borough
joined five states, two local governments, and other
environmental groups in filing new petitions for review.
Petitioners claimed that the revised program was in violation of
the prior court of appeals' order and the Outer Continental Shelf
Lands Act. The court of appeals issued an order upholding the
validity of the revised program. 712 F.2d 584 (D.C. Cir. 1983).
In North Slope Borough v. Watt, we filed a suit challenging
decisions by the Secretary of the Interior to reduce the seasonal
restrictions on oil and gas drilling operations in the Beaufort
Sea which were designed to protect the bowhead whale during its
migration. The Borough also challenged the adequacy of the
biological opinions on these decisions issued by the National
Oceanic and Atmospheric Administration under the Endangered
Species Act. The claims were rejected by the district court. 20
ERC 1457 (D. Alas. 1984).
In North Slope Borough v. Hodel, we filed a suit challenging
decisions by the Secretary of Interior to authorize exploratory
drilling operations in the Beaufort Sea during the fall bowhead
whale migration. The suit contended that noise from the drilling
operations would constitute takings of bowhead whales by
harassment, in violation of the Endangered Species and Marine
Mammal Protection Acts. The suit also raised claims under the
Outer Continental Shelf Lands Act, the Coastal Zone Management
Act, and the Alaska National Interest Lands Conservation Act.
The case was dismissed pursuant to a settlement agreement in
which the drilling companies agreed to additional restrictions on
drilling during the whale migration.
We have provided advice to the North Slope Borough
concerning federal oil and gas activities on the North Slope of
Alaska, including on the adequacy of proposed operating orders,
environmental impact statements, regulations affecting marine
mammals, biological opinions on endangered whales, coastal zone
management plans, and other measures to protect the environment
during OCS exploration and development and on energy production
proposals. We have also provided advice concerning oil and gas
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activities in the Norton Sound off the western coast of Alaska to
native groups.
State of Alaska v. Kleppe challenged the validity under NEPA
of the Gulf of Alaska OCS oil and gas sale. We represented the
City of Yakutat, the Cordova District Fisheries Union and United
Fisherman of Alaska. The district court dismissed the action.
404 F. Supp. 26 (D.D.C. • 1975) . The court of appeals affirmed
except that it held that the Department of Interior was required
to consider the inclusion of a termination clause in the lease.
580 F.2d 465 (D.C. Cir. 1978). After oil company intervenors
petitioned for a writ of certiorari in the Supreme Court, the
case was dismissed as moot because of the passage of the Outer
Continental Shelf Lands Act Amendments. 439 U.S. 922 (1978).
Southern California Ass'n of Governments v. Kleppe and
related cases were brought by fifteen cities and counties in
Southern California, the Consumer Federation of America and a
number of environmental organizations to challenge the validity
of the accelerated leasing program for the Outer Continental
Shelf and the Southern California oil and gas sale. A
preliminary injunction was denied.- 6 ELR 20115 (D.D.C. 1975).
After transfer to the Central District of California, the cases
brought by the cities and counties were dismissed on grounds of
res judicata (413 F. Supp. 563 (1976)) and the private groups
dismissed their suit voluntarily.
In GOO v. Andrus. we represented Get Oil Out and others
seeking to require preparation of site-specific impact statements
for several proposals to develop and produce oil and gas
resources in the Santa Barbara Channel. The district court held
that the environmental assessments were inadequate and enjoined
construction of the oil platforms. 468 F. Supp. 82 (CD. Cal.
1979) . After the new environmental assessments were prepared,
the district court held that an environmental impact statement
was not required. 477 F. Supp. 40 (1979).
We represented the Sierra Club and other environmental /I
groups in challenging the first sale of oil and gas leases in the
Eastern Gulf of Mexico in 1973. Plaintiffs questioned the
adequacy of the environmental impact statement prepared for the
lease sale under NEPA. The district court denied injunctive
relief and the court of appeals affirmed. Sierra Club v. Morton.
510 F.2d 813 (5th Cir. 1975).
Bruce Terris was a consultant to the Ad Hoc Committee on the
Outer Continental Shelf and to the Merchant Marine and Fisheries
Committee of the House of Representatives concerning the Outer
Continental Shelf Lands Act of 1978. Another attorney in the
firm was a member of the Committee on Assessment of Arctic Ocean
Engineering Support Capability of the National Research Council.
This committee studied engineering and environmental obstacles to
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development of oil and gas resources in the Arctic Ocean offshore
Alaska.
ENERGY CONSERVATION
We represented the Environmental Defense Fund in hearings
before the Department of Transportation urging stronger economy
standards for automobiles under the Motor Vehicle Information and
Cost Savings Act. This work consisted of finding expert
witnesses and assisting in the preparation of their testimony.
He represented a coalition of environmental groups (Sierra
Club, Friends of the Earth, Environmental Defense Fund, and
Natural Resources Defense Council) in a Federal Trade Commission
rulemaking proceeding involving the labeling and advertising of
home insulation. Through the submission of written comments,
presentation of witnesses, and cross-examination of witnesses
presented by other interested parties, we urged promulgation of a
rule which would enhance residential energy conservation efforts
through the purchase of safe and effective insulation. The
Commission promulgated a rule which was consistent with our
position, requiring that consumers -be informed of information
about the effectiveness of insulation, expressed in R-values,
through labeling, fact sheets, advertisements and other
promotional material.
We prepared an analysis of energy conservation for the New
England Governors' Conference.
OCEAN RESOURCES
We assisted the Environmental Defense Fund in preparing
comments opposing a proposal of the National Marine Fisheries to
increase the maximum take permitted for important fishery
resources in New England. The comments emphasized that the
proposal undermined the achievement of important long-range goals
of the Fishery Conservation and Management Act.
We represented Get Oil Out in supporting designation of a
marine sanctuary off of California.
We testified or submitted testimony on behalf of the New
England Governors' Conference in matters relating to deep-water
ports and double-bottom oil tankers.
WATER PROJECTS
National Audubon Society v. Kleppe involved the Garrison
Diversion project in North Dakota. The suit claimed that the
environmental impact statement and wildlife mitigation plan were
inadequate. The district court rejected the government's motions
to transfer the case to North Dakota. 6 ELR 10179, 65371 (D.D.C.
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328
1976) . Plaintiff and the Department of the Interior agreed to
the halting of almost all construction pending preparation of a
comprehensive environmental statement and a new wildlife
mitigation plan and reauthorization of the project by Congress.
When the Department violated its agreement, we obtained an order
from the court of appeals that the agreement was valid. As a
result, the district court issued an injunction against further
acquisition of land or construction. 17 ERC 1401 (D.D.C. 1981).
The court of appeals lifted the injunction and reversed on the
ground that the agreement had expired. 678 F.2d 299 (D.C. Cir.
1982) . A settlement was then arranged which allowed a part of
the project to be built, but significantly reduced the
environmental harm.
We represented the American and Canadian intervenors in a
case challenging the approval by the Federal Energy Regulatory
Commission of a proposal to raise Ross Dam in the State of
Washington. The issues involved NEPA, the Administrative
Procedure Act, the Federal Power Act, and the Wild and Scenic
Rivers Act, including whether an environmental impact statement
must consider environmental damage caused in a foreign country.
The court of appeals upheld approval of the dam, in part because
several of the critical issues would be considered in proceedings
before the Federal Energy Regulatory Commission. Swinomish
Tribal Community v. FERC, 627 F.2d 499 (D.C. Cir. 1980). A
settlement was reached with Canada under which the project was
not built.
We represented the National Wildlife Federation, other
national environmental groups and several Colorado environmental
groups in an action seeking to prevent the Denver Water Board
from constructing large water treatment and supply facilities in
the Rocky Mountains which could cause substantial environmental
damage and would be unnecessary if reasonable water conservation
measures were adopted. National Wildlife Federation v. Andrus
(D.D.C). The case involved claims that the EIS inadequately
considered cumulative impacts, alternatives, and secondary
impacts; that the EIS contained grossly inaccurate data; and that
the proposal was approved in violation of the Federal Lands
Policy Management Act and Section 404 of the Federal Water
Pollution Control Act. The case was settled when the Denver
Water Board agreed to adopt conservation measures, to establish a
continuing advisory Board which would include members of
environmental groups, to review and comment upon the Board's
development plans, to take other actions to provide more public
participation in its decision-making process, and to pay the
attorneys' fees of plaintiffs.
In Oudes v. Block, a landowner in West Virginia sued to
enjoin construction of a small dam on the ground that the United
States Department of Agriculture and Soil Conservation Service
failed to prepare an environmental impact statement adequately
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assessing the impact of the project. The district court
transferred the case to West Virginia. 516 F. Supp. 13 (D.D.C.
1981) . The West Virginia court denied the injunction and granted
summary judgment for the defendant.
FORESTS AND PARKS
West Virginia Division, of Izaak Walton League v. Butz was
brought by the Izaak Walton League, Sierra Club, Natural
Resources Defense Council and others to enjoin the "clear-
cutting" practices of the Forest Service in the Monongahela
National Forest. The district court and the court of appeals
held, under the Organic Act of 1897, that the Forest Service
could allow only the cutting of mature timber in national
forests, not young growing trees, and that each tree must be
individually marked prior to sale. 367 F. Supp. 422 (D. W.Va.
1973), affirmed, 522 F.2d 945 (4th Cir. 1975). Congress passed
the National Forest Management Act of 1976 which modified the
decision but included forestry requirements providing
substantially more environmental protection than previously
existed.
Bruce Terr is was chairman of a committee created by Senator
Jennings Randolph to draft legislation governing silvi-cultural
practices in the national forests in order to minimize
environmental damage from timber cutting. This bill was
introduced by Senator Randolph and Congressman Brown. Mr. Terris
testified in support of the bill and we represented the Coalition
to Save Our National Forests in its efforts in the Congress to
have the bill adopted. Elements of that bill were included in
the National Forest Management Act of 1976.
In Sierra Club v. Butz, the Sierra Club challenged the
decision of the Forest Service to permit timber cutting in
undeveloped, roadless areas within the national forests without
preparation of environmental impact statements. The court issued
a preliminary injunction against further timber sales covering 50
million acres of land. 3 ELR 20071 (N.D. Cal. 1969). The Forest
Service then agreed to prepare environmental impact statements
pursuant to NEPA before allowing development of the roadless
areas.
Sierra Club v. Butz was brought under NEPA, the Organic Act
of 1897, and a variety of other federal statutes to prevent the
largest timber sale in the United States in Tongass National
Forest in Alaska. We participated in the briefing of this case
in the Court of Appeals for the Ninth Circuit, which remanded the
case to the district court for further consideration. At the
request of the company, the Forest Service then canceled the
contract.
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330
United States v. Parker involved a decision by the Court of
Appeals for the Tenth Circuit holding, under the Wilderness Act,
that an area in a national forest in Colorado could not be
subject to timber cutting until it had been studied for
designation as a wilderness area. The government petitioned the
Supreme Court for a writ of certiorari and we wrote the brief
opposing that petition. The government's petition was denied.
405 U.S. 989 (1972) .
Sierra Club v. Morton. 405 U.S. 727 (1972), involved the
Sierra Club's standing to sue to prevent the construction of a
large resort and connecting highways and electrical transmission
lines by the Disney Company in the Mineral King area of Sequoia
National Park. We submitted an amicus curiae brief in the
Supreme Court on behalf of The Wilderness Society, Izaak Walton
League of America, and Friends of the Earth. Although the
Supreme Court held that standing had not been shown, it remanded
the case to the district court to allow evidence on this issue as
our brief had requested. On remand, standing was upheld and the
project was not built.
We represented NRDC, the Sierra Club, and other
environmental organizations which intervened in Alaska v. Carter
in the District Court of Alaska. See 462 F. Supp. 1155 (D. Alas.
1978). The case involved the efforts of the State of Alaska to
invalidate the actions of the President, the Secretary of the
Interior, and the Secretary of Agriculture in 1978 to protect
over 100 million acres of public lands in Alaska pending
Congressional action to place the lands in the federal land
management system. Following the district court's decision in
Anaconda Copper Co. v. Andrus (discussed below) and the enactment
by Congress in 1980 of the Alaska National Interest Lands
Conservation Act, the case was settled on terms that preserved
all the lands placed in 1979 by the President and the Secretaries
of Interior and Agriculture in the federal land management
system.
We represented many of these same groups as intervenors in
Anaconda Copper Co. v. Andrus and Bristol Bay Native Corp. v.
Carter which also involved industry challenges to the President's
efforts to protect Alaska lands. In Anaconda Copper Co. v.
Andrus . the district court held that the President's actions
under the Antiquities Act to establish national monuments were
lawful. 14 ERC 1853 (D. Alas. 1980) . In light of this decision
and the enactment of the Alaska Lands Act, the plaintiffs in
Bristol Bay dismissed their case.
We were members of the Alaska Law Council which was formed
for the purpose of providing legal resources to protect the
Alaska environment. We prepared a background memorandum for the
Council describing the major environmental issues facing Alaska.
We also assisted the Alaska Coalition in relation to legislation
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and regulations concerning disposition and management of federal
lands in Alaska.
We prepared an analysis for the National Parks and
Conservation Association concerning the legal issues raised by
proposed dam reconstruction in the Grand Teton National Park. In
particular, we considered the statutory prohibitions against
mining for borrow material within the park's boundaries.
HISTORIC PRESERVATION
Ely v. Velde involved litigation by local citizens under
NEPA and the National Historic Preservation Act to challenge the
grant of federal funds under the Law Enforcement Assistance Act
for construction of a prison in a historic area of Virginia. We
participated in the litigation in the court of appeals, which
held that the grant was illegal without preparation of an
environmental impact statement. 451 F.2d 1130 (4th Cir. 1971).
After more litigation, the project was abandoned by the State of
Virginia.
i
In Patrons of the Adams House v. Washington, we represented
a local citizens group which sought injunctive relief to stop the
demolition of a house under consideration for designation as a
historic landmark. The Superior Court of the District of
Columbia granted injunctive relief pending the determination by
the Joint Committee on Landmarks on the historic status of the
house. The house was subsequently saved.
In Crosby v. Young, we represented the plaintiffs in an
effort to prevent the City of Detroit from demolishing a
historic, ethnic neighborhood, Poletown, in order to build a GM
Cadillac assembly plant. The claims brought under NEPA, National
Historic Preservation Act and the Clean Air Act were rejected by
the district court. 512 F. Supp. 1363 (E.D. Mich. 1981).
We represented the Natural Resources Defense Council, Save
Our Broadway Committee, Actors Equity and seven other theater
unions in challenging the destruction of two historic theaters in
New York City, the Helen Hayes and the Morosco, for construction
of a hotel. Suit was brought in both federal and state court
under NEPA, the New York State Environmental Quality Review Act,
the National Historic Preservation Act and the Housing and
Community Development Act. As a result of the suit, the
Department of the Interior agreed to consider the administrative
appeal to have the Morosco declared eligible for the National
Register of Historic Places and the theater was found eligible.
We then participated in proceedings before the Advisory Council
on Historic Preservation which approved a Memorandum of Agreement
allowing the destruction of the theater. Subsequently, the
district court denied a preliminary injunction (Natural Resources
Defense Council v. City of New York. 528 F. Supp. 1245 (S.D.N.Y.
23
332
1981)), the court of appeals reversed that decision and remanded
for a partial trial on the merits (12 ELR 20182 (2d Cir. 1982)),
the district court again ruled for the City (534 F. Supp. 279
(S.D.N.Y. 1982)), the court of appeals affirmed (672 F.2d 292 (2d
Cir. 1982) and the Supreme Court first issued and then lifted an
injunction (456 U.S. 920 (1982)). In the state courts, after
receiving several temporary injunctions, we lost in the New York
Supreme Court, the Appellate Division, and the Court of Appeals.
Natural Resources Defense Council v. City of New York. 112
Misc. 2d 106 (Sup. Ct., N.Y. Co. 1982), affirmed without opinion,
86 A.D. 2d 818 (1st Dept. 1982), leave to appeal denied, 46
N.Y. 2d 501 (1982) . As a result, the theaters were destroyed.
However, the case spurred successful efforts to confer landmark
status on other New York theaters.
LAND USE AND ZONING
Coalition Against Lincoln West v. City of New York was
brought in New York state court on behalf of residents of the
upper West Side of Manhattan, challenging the City's approval of
a massive residential/commercial development in that area. The
suit was based on violations of the- New York State Environmental
Quality Review Act (SEQRA) and the New York City Charter
requirements for public participation in land use decisions. The
trial court held that the City's environmental impact statement
violated SEQRA because it failed to consider reasonable
alternatives to the project. The Appellate Division reversed and
the reversal was upheld by the Court of Appeals. 94 A.D. 2d 483
(1st Dept. 1983), affirmed, 60 N.Y. 2d 805 (1983).
Sierra Club v. Lynn. 364 F. Supp. 834 (W.D. Tex. 1973), was
brought on behalf of the Sierra Club and a number of local
organizations challenging a grant by the Department of Housing
and Urban Development for a new town which threatened San
Antonio's water supply. The suit contended that the
environmental impact statement was inadequate. The case was
settled when the government agreed to do additional studies prior
to disbursing funds and an new environmental statement was
prepared.
Arlington v. Board of Supervisors of Fauquier County was
brought in the Circuit Court for Fauquier County, Virginia,
challenging the county's approval of a subdivision in a rural
area. The plaintiffs contended that the county violated its
subdivision ordinance because the plan was inconsistent with the
county's comprehensive plan and other provisions of the ordinance
relating to septic tanks, roads and the like. The circuit court
rejected these claims and the Virginia Supreme Court refused to
hear the case.
Citizens Ass'n of Georgetown v. Zoning Commission challenged
as illegal the rezoning of the Georgetown waterfront to allow
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mixed-use development because it is inconsistent with the
comprehensive plan for the District of Columbia and was adopted
after illegal ex parte communications between the D.C. government
and waterfront developers. The Superior Court rejected our
contentions. We appealed to the District of Columbia Court of
Appeals which en banc rejected both claims. 392 A. 2d 1027
(1978) .
We represented three Colorado environmental organizations —
Western Colorado Resource Council, Colorado Open Space Council
and High Country Citizens Alliance — and two national
environmental organizations — Friends of the Earth and the
Wilderness Society — in a challenge to a land-use plan prepared
by the Bureau of Land Management for part of the North Fork
Valley in western Colorado. The issues involved the right of
affected citizens to raise such a challenge and the duties of the
BLM under NEPA, the Federal Land Policy and Management Act, and
the Mineral Leasing Act with regard to land-use planning. This
challenge was rejected at the agency level.
We represented a group of citizens in Charles County,
Maryland, who opposed a proposed outdoor shooting range which was
to be located within one mile of the site of the largest Great
Blue Heron rookery on the Atlantic Coast. As a result of this
opposition, the proposal was withdrawn.
We represented the Community Planning Association of
Catonsville, Maryland, at hearings of the Planning Board of
Baltimore County on a proposed large subdivision.
We advised a citizens group in King George County, Virginia,
concerning its opposition to proposed sand and gravel mining
operations on prime agricultural farm land. We analyzed whether
the developers had procured valid permits under federal, state
and local law.
We represented a group of citizens in McLean, Virginia, who
sought to persuade the County of Fairfax to reguire a developer
to revise his construction plans to make the development more
compatible with the surrounding environment.
NOISE
We served as technical consultants to an EPA project which
was preparing a manual on noise enforcement litigation by state
and local prosecutors.
ENVIRONMENTAL TORT LITIGATION
We advised residents in Maryland concerning possible
environmental tort litigation relating to fluids emitted by an
aluminum reduction plant.
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Bruce Terr is advised the Canadian St. Regis Band of Mohawk
Indians concerning the appropriateness of a proposed settlement
of environmental tort litigation brought by the Band against a
large aluminum company relating to the emission of fluorides.
Mr. Terr is recommended that the settlement be approved. The Band
approved the settlement.
In June 1980, Bruce Terr is spoke at a conference in Berlin,
concerning the environmental law of Germany and the United
States, on the American law of nuisance. He subsequently gave
talks in three other German cities on behalf of the United States
government on American environmental law.
In March 1989, Bruce Terris participated in the Thirteenth
Annual United States District Court Judicial Conference on a
panel with judges and leading attorneys chaired by Fred Friendly
discussing a hypothetical environmental tort case.
MISCELLANEOUS LITIGATION
We represented a number of environmental and other citizens
groups in Natural Resources Defense Council v. SEC. The court
reversed the district court's order that the SEC conduct further
rulemaking proceedings as to whether it should require additional
disclosures from corporations concerning the impact of their
activities on the environment and their compliance with equal
employment opportunity statutes. 606 F.2d 1031 (D.C. Cir. 1979).
However, the court based its decision in part on the commitment
of the SEC to consider further actions in these areas.
In Prince George's County v. Holloway. we represented a
group of employees of the Naval Oceanographic Office which was
being transferred from Maryland to Mississippi. The district
court issued a preliminary injunction against that transfer on
the ground that the environmental impact statement was inadeguate
under NEPA. 404 F. Supp. 1181 (D.D.C. 1975).
MISCELLANEOUS OFFICE ACTIVITIES
We have advised the Environment Protection Agency of the
State of Israel concerning American laws and regulations
requiring an examination of the environmental impact on Israel of
U.S. -funded projects in neighboring countries and on mechanisms
that have been used to resolve environmental disputes between
such countries.
Bruce Terris spoke in 1989 at an international conference in
Israel on the subject of citizen litigation in the United States.
As a result, interest was raised in legislation in Israel to
encourage citizen environmental suits. Terris assisted an
Israeli lawyer in preparing a bill which would expand citizen
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standing in environmental suits, provide for the payment of
attorneys' fees to citizen plaintiffs, and give other rights to
citizens bringing all types of environmental litigation. The
bill has been introduced in the Knesset and passed its first test
in committee.
Bruce Terris spoke on environmental citizen litigation at
the Fifteenth Annual Conference on the Environment sponsored by
the Standing Committee on Environmental Law of the American Bar
Association.
Mr. Terris has spoken on air quality and NEPA litigation at
several environmental law seminars sponsored by the American Law
Institute and the American Bar Association.
Carolyn Smith Pravlik served on the Advisory Panel to the
United States Sentencing Committee for review of the United
States Sentencing Guidelines on environmental crimes.
Kathleen L. Millian spoke on environmental citizen suits in
February 1993 at the American Law Institute/American Bar
Association's annual course on Environmental Law.
We have appeared at numerous Congressional hearings,
administrative hearings, meetings, and seminars concerning NEPA,
the Clean Air Act, the Clean Water Act, and the recovery of
attorneys' fees under environmental and other statutes.
We have prepared comments on numerous draft environmental
impact statements and environmental assessments including on coal
development and related railroad construction in eastern Wyoming,
a coal strip mine in Montana, the national coal-leasing program,
oil and gas leasing in the Beaufort Sea, oil platforms in
California, phosphate mining in Idaho, a dam in Washington, an
LNG facility in New York, a geothermal project in New Mexico, and
the Channel Island Marine Sanctuary in the Santa Barbara Channel
off California.
Bruce Terris has served on the legal advisory committees of
Friends of the Earth and the Environmental Defense Fund.
The firm received the Law Conservationist of the Year Award
from the National Wildlife Federation for 1982.
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BRUCE J. TERRIS
CAROLYN SMITH PRAVUK
MONICA WAGNER
KATHLEEN L. MILUAN
TERRIS. PRAVLIK & WAGNER
1121 12TM STREET. N.W.
WASHINGTON. O.C 20003-4632
(202> 682-2 lOO
MO/TELEX 202-267-S34I
FAX: 202 289-6795
ROBERT O. PARRISH
MARK V. OUGAN
EUSABETH J. LYONS
ROCHELLE BOBROFF
ZDENA NEMECKOVA*
ERCIA A BILSKY
SCOTT M DUB1N*
J. MARTIN WAGNER
■NOT AOMTTCO TO OC SAN
December 3, 1993
Lois Schiffer
Acting Assistant Attorney General
Environment and Natural Resources Division
Department of Justice
10th Street & Constitution Avenue, N.H.
Room 2143
Washington, D.C. 20530
Dear Ms^^Sohiffer:
I am writing to thank you for meeting with groups involved in
citizen suit litigation under the Clean Water Act (CWA) . The
citizen groups were pleased with the government's interest and
openness, and we all look forward to working with you in the
future.
I am also writing to follow up on the discussion regarding the
sharp difference between the Department of Justice's litigation of
CWA cases as a plaintiff and as a defendant. In our lawsuits
against the United States in Friends of the Earth. Inc.. et al. v.
Hazel O'Learv. et al.. E.D. Term. , CIV-3-92-036 (hereafter, the
"Oak Ridge Litigation") , and Public Interest Research Group of New
Jersey. Inc.. et al. v. Michael P.W. Stone. D.N.J. , Civil No. 91-
5583 (hereafter, the "Fort Dix Litigation"), D0J has made a number
of arguments which directly conflict with positions D0J has taken
as a plaintiff in Clean Water Act cases.
For example, in the Oak Ridge Litigation, D0J has made the
following arguments:
• Defendants need not achieve 100 percent compliance
with their NPDES permits; rather, a good faith
effort to attain 100 percent compliance is
sufficient. See United States' Opposition to
Plaintiffs' Motion for Summary Judgment and
Memorandum in Support of United States' Cross-Motion
for Summary Judgment (hereafter "U.S. Opposition")
(January 13, 1993), pp. 12, 21-22, 28-29; see also
Deposition of Leonard Vaughan (Supervisor of the CWA
environmental management department at the Y-12
plant) (August 24, 1993), p. 90 ("[The permit is]
basically to give you a carrot to work towards") .
t •* ion •»*■»«' *m
337
Lois Schiffer
December 3, 1993
Page 2
• An oral or written statement from the Tennessee
Department of Energy and Conservation (TDEC) is
sufficient to modify defendants' permits. See
Deposition of David Buhaly (August 25-26, 1993), p.
128 ("A letter [from TDEC] is considered a
modification to a permit").
• Defendants' have historically interpreted the permit
requirement of "daily" monitoring to require only
work week sampling; TDEC has informally acknowledged
this interpretation. U.S. Opposition, p. 25.
• Although defendants continue to violate the
discharge limitations of their permits, plaintiffs'
complaint is moot since defendants have taken
corrective action since plaintiffs filed their
complaint. U.S. Opposition, p. 33.
DO J has rejected these same arguments in CWA cases against
private polluters. For example, with regard to permit compliance,
DOJ has long successfully argued that 100 percent compliance is
required. See American Petroleum Institute v. E.P.A.. 540 F.2d
1023, 1036 (10th Cir. 1976); United States v. Amoco Oil Co. . 580
F.Supp. 1042, 1050 (W.D. Mo. 1984).
Similarly, DOJ has argued, again successfully, that informal,
unilateral actions such as letters from state regulatory
authorities like TDEC are insufficient to modify a permit. See
United States v. Ohio Edison Co.. 725 F. Supp. 928, 933 (N.D. Ohio
1989) ; United States v. Metropolitan District Commission. 23 ERC
1350, 1355 (D. Mass. 1985). As plaintiffs, DOJ would reject the
contention that TDEC's informal acknowledgment of defendants'
practice as to "daily" sampling modified defendants' permits.
DOJ has also argued that a defendant bears an extremely heavy
burden in showing mootness. As amicus curiae in Gwaltnev v.
Chesapeake Bav Foundation. 484 U.S. 49 (1987), DOJ argued that
defendant, although then in full compliance with its KPDES permit,
did not establish mootness where it did not raise its claim of full
compliance until nearly one year after the complaint was filed.
See Brief for the United States as Amicus £yrias Supporting
Affirmance (May 1987), pp. 28-29. In this case, however, even
though defendants have ongoing violations, DOJ has claimed
mootness.
In addition to taking positions in the Oak Ridge Litigation
which it has rejected in its own enforcement cases, DOJ has taken
positions which are inconsistent with EPA policy. Such positions
include the following:
• A single sample analysis cannot be used to determine
compliance with a weekly, monthly or quarterly
average limit. U.S. Opposition, Affidavit of David
Buhaly, para. 8.
338
Lois Schiffer
December 3, 1993
Page 3
• Despite the fact that defendants' state
certification letters require compliance with state
water quality control criteria, compliance is not _
required where the state criteria are more stringent
than permit requirements.1 Buhaly Deposition, pp.
125-126. ;,
• Defendants' violations of the discharge limitations
of their permits, including fish kills, have not
resulted in irreparable harm. U.S. Opposition,
pp. 58-62.
These positions are inconsistent with EPA's position. For
example, if DOJ's argument that a single sample cannot be used
to determine an average limit is taken to its logical conclusion,
a defendant would never report an average sample for a given time
period whenever its NPDES permit only required one sample over that
period. That EPA does not contemplate this illogical result is
made clear in its NPDES Self-Monitoring System Dser Guide (January
1985) . In the instructions for completion of discharge monitoring
reports, the guide states: "* Average' is normally arithmetic
average (geometric average for bacterial parameters) of all sample
measurements for each parameter obtained during the monitoring
period." Id. , P- 14. Therefore, if a single sample is taken
during a month- long monitoring period, that sample would be the
monthly average.2
Similarly, DOJ's view that defendants are not required to
comply with state water quality criteria contradicts EPA
regulations. See 40 C.F.R. 123.259(a). That regulation plainly
states: "In all cases, States are not precluded from omitting or
modifying any provision to impose more stringent requirements."
Finally, DOJ's contention that the pollutants which defendants
discharged in violation of their NPDES permit limits (e.g. .
chromium, zinc, PCBs, and copper) do not cause irreparable harm
directly contradicts EPA's view of these same pollutants. See 52
Fed. Reg. 12889 (April 17, 1987); EPA, Quality Criteria for Water
(July 1986) .
In the Fort Dix Litigation we filed a motion for contempt
because of the United States' violations of the Consent Decree
which required full compliance with the NPDES permit for the
Pedricktown, New Jersey facility. In response, the United States
admitted that it had violated the permit and thus the Consent
xWhile DOJ has not discussed this issue in its court papers,
it has contended orally that defendants need not comply with state
water quality criteria.
2 The courts do not accept this illogical result either. See
Natural Res. Defense Coun. v. Outboard Marine Corp.. 692 F. Supp.
801, 820-821 (N.D. 111. 1988).
339
Lois Schiffer
December 3, 1993
Page 4
Decree in April, May and June 1993, but nade the following
arguments in opposition to our motion for contempt (United States'
Opposition to Plaintiffs' Motion to Have Defendant Held in Contempt
of the Court's Order of March 24, 1993 ("U.S. Opposition"), October
5, 1993): •■
• The FSOD and TSS percent removal requirements which the /.
United States violated were not important for the ??
protection of the environment and the United States' .'-'-'■'--
compliance with the concentration and loading
parameters of its MPDES permit excused its violations
of the percent removal requirements. U.S. Opposition
5-8.
• The percent removal requirements in the permit may be too
stringent considering the weakness of the influent to the
wastewater treatment plant. "The U.S. Environmental
Protection Agency's regulations recognize that diluted
influent can cause violations of percent removal
requirements, and that permit modification may be
appropriate in such circumstances." U.S. Opposition 8.
DOJ's first argument above seeks to have the Court discount
the United States' violations of certain terms of the permit
because it believes that other terms, with which the United States
complied, are more important. This argument undermines the
regulatory scheme set out in the permit which adopts three separate
mechanisms for regulating FSOD and TSS.
DOJ's second argument amounts to no more than an attack on the
terms and conditions of a permit which cannot be made in an
enforcement proceeding. 33 U.S.C. 1369(b)(2); PIRG v. Powell
Duffrvn Terminals Inc.. 913 F.2d 64, 78 (3rd Cir. 1990), certiorari
denied, 498 U.S. 1109 (1991) . DOJ made no claim that the United
States had actually sought a modification to its permit.
If DOJ is successful in taking anti-environmental positions,
the principal result will be to make it more difficult to enforce
the law against non- federal polluters. More important, however,
DOJ's inconsistency undermines the integrity of the federal
governments enforcement of environmental laws. The federal
government should be setting an example in its compliance with
federal environmental laws, not raising issues which, interfere
with effective enforcement. The positions described above are no
different than those taken by private polluters. I submit that the
environmental community, and the public in general, have a right to
expect more of the federal government.
340
Lois Schiffer
December 3, 1993
Page 5
I hope that we can work together with DO J to establish greater
uniformity in CWA litigation policy.
Thank you for your consideration.
Very truly yours,
Bruce J. Terr is
341
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■wot aomttco o c *«*
October 27, 1993
Lois Schiffer
Acting Assistant Attorney General
Environment and Natural Resources Division
Department of Justice
10th and Constitution Avenue, N.W.
Room 2143
Washington, D.C. 20530
Dear Ms. Schiffer:
On March 31, 1993, In PIRG v. Hercules- O.N.J. C.A. Mo. 89-
2291, the District Court for the District of New Jersey Issued a
decision, holding that, under Section 505(b) of the Water Act and
EPA's regulations regarding notice (40 C.F.R. 135(a)), the court
did not have subject Batter jurisdiction over pre -complaint
violations which were not specifically listed in plaintiffs' 60-day
notice letter or over post-complaint violations which were not of
the same type as those included in the notice letter. The court
therefore dismissed many discharge violations and all the
monitoring, reporting and recordkeeping violations.
Plaintiffs moved the district court for certification of an
interlocutory appeal to the Court of Appeals for .the Third Circuit.
Defendant asked the court to certify for appeal the issue of
whether the court had subject matter jurisdiction over the post-
complaint discharge violations since they were not noticed. The
district court certified both Issues for appeal. ^ On September
23, 1993, the parties petitioned the court of appeals for
permission to appeal the issues.
We anticipate that the court of appeals will accept the issue
for appeal. We are writing to ask you if you would assist us in
litigating this issue by submitting an amicus curiae brief to the
court of appeals in the event that the court decides to entertain
the appeal. We anticipate that this case will have a major impact
on citizen suit litigation. Several defendants in other cases we
1/Copies of the district court's original decision and its decision
to certify an interlocutory appeal are enclosed.
*rln««d on ion t«cyclcd ff/tr oltk MX fo»t-Co*»f Ihtn.
342
Lois Schiffer
October 27, 1993
Page 2
If courts do not have jurisdiction over any violations except
those specifically listed in the 60-day notice letters, aany
pending citizen suits will be seriously jeopardised. Bach tiae a
new violation is identified through discovery. or a new violation
occurs after the complaint is filed, under the district court's
opinion, a new notice letter would need . to be sent. (If
defendant's appeal is successful, a new notice letter would be
required for all violations which occur after the complaint was
filed, even if they were of the saae type as those -listed in the
notice letter.) When the Supreae Court's decision 'In Cwaitney ie
coabined with the decision in Hercules, citizens alght well be
barred froa suing on violations listed in the new notice letter if
the defendant can bring itself into compliance during the 60-day
notice period. This Bay frequently be the case, since the
defendant will have had the 60 days of the original notice period,
the tiae which has elapsed during discovery and the new 60-day
notice period to bring itself into compliance.
The Hercules decision is particularly serious as to unreported
discharge violations and monitoring and reporting violations.
Since it is extremely difficult, and often impossible, to identify
these types of violations prior to discovery, new notice letters
would be needed in order to sue on these types of violations in
almost every case. At the same time, since it is extremely easy to
correct such violations within a 60-day period, a serious Cwaitney
problem will often exist. While citizens have a good argument
under the decision of the Pourth Circuit in Sierra Club v. Slmxins
Industries. Inc.. 847 P. 2d 1109 (4th Cir. 1988), certiorari denied,
491 U.S. 904 (1989), that monitoring and reporting violations are
continuing in nature and therefore cannot be barred under Cwaitney.
it is by no means certain that this argument will be successful.
We believe that an amicus brief from EPA would be extremely
helpful. EPA has often recognized that citizen suit litigation is
an important part of enforcement of the Water Act. An amicus brief
submitted by EPA could stress the important role of citizen suits
in the enforcement of the Water Act and the effect on enforcement
of the Act if citizen suits were limited.
Moreover, the district court relied in large part on EPA's
regulations regarding notice. An amicus brief could explain the
purpose of EPA's regulations concerning notice and emphasize that
they are intended, as we understand them, mainly to provide the
government with an opportunity to initiate enforcement action
before citizens, and not to protect defendants from citizen suits.
343
Lois Schif fer
October 27, X993
Pag* 3
If you are abla to assist us or are interested in discussing
the issue, please call us. Thank you for your attention to this
Batter. - *»
Sincerely,
Carolyn Saith Pravlik
Elisabeth J. Lyons
Enclosures
cc: David Drelich
Nancy K. Stoner
344
OFFICE Or THE CLERK
United States Court of Appeals
P. DOUGLAS SISK TELEPHONE
o_ckk FOR THE THRO CIRCUIT 11«<M7<2«tt
2 1400UNrTED STATES COURTHOUSE
COI MARKET STREET
PHIL A OELPHIA. PA I 9 1 06 • 1 700
AMENDED 7/5/94
TO INCLUDE SERVICE
June 13, 1994
Ms. Susan Lipow (Mall Stop 2355)
Associate General Counsel, Hater Division
Office of General Counsel
Environmental Protection Agency
401 "M" Street, S.W.
Washington, D.C. 20460
RE: Public Interest Research Group of NJ. Inc.
v. Hercules, Inc.
Nos. 93-5720/21
Listed: Tuesday, July 12, 1994
Dear Ms. Lipow:
This will confirm our conversation this afternoon
regarding the above-entitled matter.
In the case set forth above, which is before this court
on an interlocutory appeal pursuant to U.S.C. 28 S 1292(b), the
parties have differing interpretations with respect to the
regulation promulgated by the Environmental Protection Agency at
40 C.F.R. S 135.3 pursuant to 33 U.S.C. S 1365(b)(1). The briefs
submitted by counsel are enclosed for your information. The
court believes that the views of the Environmental Protection
Agency would be helpful. Therefore, the Court requests that you
file a brief amicus curiae, if possible by June 30, 1994, and
serve copies upon counsel.
The Court appreciates your efforts in this matter, and
if you have any questions, kindly contact me at (215) 597-3128.
Very truly yours,
P. DOUGLAS'S I SK
Clerk
/b
Enclosures
cc: Joel Schneider, Esq.
(Carolyn S. Pravllk, Esq.
(Bruce J. Terrls, Esq.
345
U& Department JJwtict
PRS
90-1-24-177-254
HuHftm. dC XSX
June 27, 1994
Mr. P. Douglas Sick
Cleric
United States Court of Appeals
for the Third Circuit
21400 United States Courthouse
601 Market Street
Philadelphia, Pa. 19106-1790
*
RE: Public Interest Research Group of K.J. Inb. .
v. Hercules. Inc.. Nos. 93-5720 and 93-5721
Listed: Tuesday, July 12, 1994
Dear Mr. Sis*:
This vill confira our conversation of Friday afternoon
regarding the participation by the United States, as amicus
curiae, in the above-entitled aatter.
Having received the request from the Court for the
views of the United States, ve shall, of course, file a brief.
As I indicated to you, however, the United States has been aware
of this litigation as it progressed in the distriot court. We
considered amicus participation at that stage, but declined to do
so for lack of a united position that all affected components of
the federal government could support. The pending Court of
Appeals request will require us to develop and coordinate that
position on very short notice.
Because of the nature of the issue, several components
of the Environmental Protection Agency are involved in fashioning
the amicus brief. A final decision for EPA on what its regula-
tion means in this context may need to be made by the Administra-
tor. Moreover, because the issue also has application to
federally owned facilities that could be the subject of future
citizen suits, our brief will need to be coordinated with the
Department of Defense and the Department of Energy.
346
- a -
For these reasons, «« reluctantly conclude that it
would be impossible to file a helpful, responaive brief within
the tiae originally allotted by the Court 'a latter of June 13,
1994. Mindful that the oaaa haa been eat for argument, wa ask
the Court' a permission to file our brief no later than July 7,
1994.
Thank you for your consideration of this setter.
Sincerely,
Peter *. Steenland, Jr. S/^S
Chief, Appellate Section (S J
Environment and Natural Resources
Division
Department of Justice
P.O. Box 23795 (L'Bnfant Station)
Washington, O.C. 20026
(202) 514-2748
347
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 93-5720 and 93--5721
PUBLIC INTEREST RESEARCH GROUP
OF NEW JERSEY, INC., AND FRIENDS OF THE EARTH, INC.,
Appel lants/Cross-Appel lees ,
v.
HERCULES INCORPORATED,
Appellee/Cross-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
-LOIS J. SCHIFFER
Acting Assistant Attorney General
ELLEN J. DURKEE
EVELYN S. YING
Attorneys. Department of Justice
Environment j Natural Resources
Division
Washington. D.C. 2Q530
t202) S14-2754
JULY 1994
90-1-24-177-254
348
IHOtX
PAGE
Interest of the United States 1
*
Statement — ■ 2
A. The statutory scheme of the Clean Hater Act — 3
B. The present citizen suit 5
Discussion — — 7
A. Notice must provide sufficient information to
permit identification of the specific
standards and limitations alleged to have been
violated io
B. While notice should be required for violations
that cannot be detected from public records,
the district court should facilitate discovery
of 6uch violations : 13
C. Later-occurring continuous or intermittent
violations already mentioned in prior notices
need not be listed in subsequent notice
letters — \$
Conclusion 18
Certificate of Service
CITATIONS
CASES!
EPA v. California ex rel. State Water Resources
Control Bd. . 426 U.S. 200 (1976) 3
Gwaltnev of Smithfield. Ltd. v. Chesapeake Bav Found.
Inc. . 484 U.S. 49 (1987) 8,17
Hallstrom V. Tillamook County. 439 U.S. 20 (1989) 8
National Environmental Found, v. ABC Rail Corp..
926 F.2d 1096 (11th Cir. 1991) 8
Natural Resources Defense Council v. Texaco Refining
& Mkto.. 2 F.3d 493 (3d Cir. 1993) 12
Qppenheimer Fund. Inc. v. Sanders. 437 U.S. 340
(1978) 14
Town of Norfolk v. United States Armv Corps of
Engineers, 968 F.2d 1438, 1459 (1st Cir. 1992) 2
United States v. Farley. 11 F.3d 1385 (7th Cir.
1993) 14
349
PAGE
fiAJEfll
United States v. Providence Journal Co.,
485 U.S. 693, 706 (1987)-
Walls v. Waste Resource Corp..
761 P.26T 311
(6th Cir. 1985)
9
gT*TPTEfl. ROLES and REQDLATIONSt
Clean Water Act, 33 U.S.C. 1251
Section 101(a), 33 U.S.C.
Section 301(a), 33 U.S.C.
Section 308(b), 33 U.S.C.
Section 308(c), 33 U.S.C.
Section 309, 33 U.S.C.
et seq.
1251(a) -
1311(a) -
1318(b) -
1318(c) -
28 U.
Fed.
40 C.
40 C.
40 C.
40 C.
40 C.
40
40
1319
Section 309(g)(6), 33 U.S.C. 1319(g)(6)
Section 313, 33 U.S.C. 1323
Section 402, 33 U.S.C. 1342
Section 402(a), 33 U.S.C. 1342(a)
Section 402(a)(2), 33 U.S.C. 1342(a)(2)
Section 402(b)(7), 33 U.S.C. 1342(b)(7)
Section 502(12), 33 U.S.C. 1362(12)
Section 505, 33 U.S.C. 1365
Section 505(a), 33 U.S.C. 1365(a)
Section 505(a)(1), 33 U.S.C. 1365(a)(1)
Section 505(a)(1)(A), 33 U.S.C. 1365(a)(1)(A)
Section 505(b), 33 U.S.C. 1365(b)
Section 505(b)(1)(B), 33 U.S.C. 1365(b)(1)(B)
Section 505(C)(3), 33 U.S.C. 1365(C)(3)
Section 505(f), 33 U.S.C. 1365(f)
Section 505(f)(6), 33 U.S.C. 1365(f)(6)
S.C. 516-519
R. Civ. P. 15
F.R. 122.41(j)
F.R. 122.41(j) (2)
F.R. 122.4(1)
F.R. 135
F.R. 135.3
F.R. 135.3(a)
F.R. 135.1-135.4
1,4
.1,7
,17
5
Passim
8
8
4,10
10
2
14
4
11
4
2
Passim
9
9
MI8CELLANEOP8:
S. Rep. No. 414, 92nd Cong. 1st Sess. 79-80 (1971),
reprinted in. 1972 U.S.C. C.A.N. 3668
12
- ii -
350
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRO CIRCUIT
Nos. 93-5720 and 93--5721
PUBLIC INTEREST RESEARCH GROUP
OF NEW JERSEY, INC., AND FRIENDS OF THE EARTH, INC.,
Appellants/Cross-Appellees,
v.
HERCULES INCORPORATED,
Appe 1 1 ee/Cross-Appe 1 1 ant .
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
BRIEF FOR THE UNITED 8TATE8 AS AMICUS CURIAE
INTERE8T OF THE UNITED 8TATES
The United States Environmental Protection Agency
(*EPA") plays a lead role in enforcing the Clean Water Act (*CWA»
or "Act"), 33 U.S.C. 1251 £t seq. Citizen enforcement provides
an important supplement to government enforcement of the Act.
When responsibly pursued, these private suits provide a strong
incentive for regulated entities to comply with the Act. The
United States is also a potential defendant in citizen suits
against federal facilities under the Act. CWA Section 313,
33 U.S.C. 1323; CWA Section 505, 33 U.S.C. 1365.
This appeal concerns the notice requirements for a
citizen enforcement action. The citizen suit provision, Section
505 of the CWA, 33 U.S.C. 1365, requires citizen-plaintiffs to
351
provide notice to the EPA, the State, and the alleged violator at
least 60 days prior to commencement of a civil enforcement
action. The statute also requires that the notice be given in a
_ ■*«■
manner prescribed by EPA regulation.
By letter dated June 13, 1994, this Court requested the
views of the EPA regarding its interpretation of the notice
requirement set forth in 40 C.F.R. 135.3, promulgated pursuant to
Section 505(b) of the CWA, 33 U.S.C. 1365(b). This brief amicus
curiae is submitted in response to the Court's request.!/
STATEMENT
The Clean Water Act permits private citizens to bring
civil actions to enforce the Act's pollution control
requirements. The present case involves a citizen suit brought
under the Act. The issues raised in this interlocutory appeal
concern the notice requirements for such private enforcement
actions as set forth in the Act, 33 U.S.C. 1365(b), and EPA's
1/ In the letter from the Court inviting amicus participation,
the Clerk stated that the views of the EPA were solicited. This
brief sets forth the views of not only the EPA, but other
components of the federal government as well. Therefore,
consistent with the customary practices of the Department of
Justice, we are submitting this brief amicus curiae for the
United States. See 28 U.S.C. 516-519 (officers of the Department
of Justice, under the direction of the Attorney General, have the
responsibility to conduct litigation in which the United States
is a party or the United States is interested) . Indeed, the
Supreme Court has recognized that a primary purpose of
centralizing litigation responsibility in the Department of
Justice is to assure that the United States should speak with one
voice 'that reflects not the parochial interests of a particular
agency, but the common interests of the Government and therefore
of all the people.* United States v. Providence Journal Co.. 485
U.S. 693, 706 (1987); Town of Norfolk v. United States Army Corps
of Engineers. 968 F.2d 1438, 1459 (1st Cir. 1992).
- 2 -
352
implementing regulations, 40 C.F.R. Part 135.2/
A. Th« statutory schema of the Clean Water Act.
The CWA, creates a comprehensive program to 'restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.* 33 U.S.C. 1251(a). As a part of that program,
Section 101(a) of the CWA prohibits all discharges of pollutants
into the nation's waters except those made in compliance with
other provisions of the Act, including Section 402, which
establishes the National Pollutant Discharge Elimination System
CNPDES*). 33 U.S.C. 1311(a), 1362(12).
Section 402 (a) of the Act provides that the EPA shall
issue NPDES permits authorizing effluent discharges in strict
compliance with conditions specified in the permit. 33 U.S.C.
1342(a); see EPA v. California ex rel. State Water Resources
Control Bd.. 426 U.S. 200, 205-208 (1976). Section 402(b) allows
each State to develop and administer its own permit program,
2/ The district court certified the following question for
interlocutory appeal:
Whether this court correctly decided, pursuant to section
505(b^(l) of the CWA, as amended, 33 U.S.C. 1365(b)(1) and
the accompanying regulations at 40 C.F.R. 135.3, that where
plaintiffs have given notice of intent to sue for various
discharge violations but no other type of violation ( i.e. .
monitoring, reporting or recordkeeping) this court's subject
matter jurisdiction includes the noticed violations and any
post-complaint continuing violations of the same type as
those for which notice was given, but not unnoticed pre-
complaint violations, nor post-complaint violations of a
different type from those for which notice was given.
See JA 972.
- 3 -
353
provided that the program meets federal requirements. 33 U.S.C.
1342(b) .
NPDES permits generally specify particular effluent
parameters, including permissible concentrations of particular
pollutants, based on daily .and monthly averages. NPDES permits
also require, pursuant to Section 402(a)(2), that the permittee
monitor its effluent and submit reports disclosing the results.
33 U.S.C. 1342(a)(2). With narrow exceptions to protect trade
secrets, the CWA requires that such reports, generally known as
discharge monitoring reports, be made available to the public.
See 33 U.S.C. 1318(b); 40 C.F.R. 122.41(j), (1).
If an NPDES permit holder fails to comply with the
specified permit conditions, the federal and state governments
may take enforcement action. Section 309 of the Act empowers the
EPA to enforce a federal or state permit through a variety of
administrative, civil, and criminal mechanisms. 33 U.S.C. 1319.
A state may take similar action, under applicable state law, in
response to a violation of a state-issued permit. 33 U.S.C.
1342(b)(7).
In addition, Section 505(a) of the CWA permits private
citizens to commence a civil action in certain situations against
one alleged to be in violation of 'an effluent standard or
limitation* under the Act, which includes a federal or state
NPDES permit or condition thereof. 33 U.S.C. 1365(a), (f). This
provision authorizes the district courts to enforce the permit
requirements and impose civil penalties. See 33 U.S.C. 1365(a).
- 4 -
354
B. The present citizen suit.
On March 21, 1989, the New Jersey Public Interest
Research Group ('NJPIRG') gave notice to the EPA, the New Jersey
Department of Environmental Protection and Energy ("NJDEPE') , and
the defendant, Hercules, Inc. ("Hercules'), that it intended to
file a citizen suit under Section 505 of the CWA, 33 U.S.C. 1365,
alleging that Hercules had violated an 'effluent standard or
limitation' under Section 505(a)(1)(A) of the Act, 33 U.S.C.
1365(a)(1)(A), by failing to comply with the NPDES/NJPDES permit
issued for Hercules' facility in Gibbstown, New Jersey. See JA
144-147. The 60-day notice letter attached a list of 68 specific
violations of discharge limitations of Hercules' permit. Shortly
thereafter, the Friends of the Earth ('FOE') sent Hercules, the
EPA, and the NJDEPE a notice letter, which stated that it
intended to join NJPIRG in bringing a citizen suit against
Hercules.
On May 24, 1989, plaintiffs filed a complaint alleging
that Hercules had committed numerous violations of its
NPDES/NJPDES permit. JA 165-187. Plaintiffs attached a list of
87 discharge violations to the complaint, 31 of which were not
among those mentioned in the 60-day notice letter and some of
which were violations involving different pollutants than those
listed in the notice letter. JA 183-185. During the course of
briefing, plaintiffs alleged additional violations for which they
sought to hold Hercules liable. These included various
monitoring, reporting, and recordkeeping violations that were not
- 5 -
355
discernible from publicly available records. These additions
came in the form of several 'informal* amendments and
enlargements during the course of briefing the parties' cross
motions for summary judgment. Prior to the district court's
March 31, 1993 ruling, plaintiffs had not filed any additional
60-day notices or any amended complaints.
In September 1992, plaintiffs moved for summary
judgment as to 114 discharge violations and 614 monitoring,
reporting and recordkeeping violations. JA 791-809. Hercules
sought summary judgment dismissing all violations other than
those which were specifically listed in the March 21, 1989,
60-day notice letter.
In its March 31, 1993, Order and Opinion, the district
court granted summary judgment for Hercules as to all
pre-complaint discharge violations not specifically listed in
plaintiffs' notice letter and all monitoring, recording and
recordkeeping violations. See NJPIRG's Opening Brief, Ex. 1
(•March 1993 Opinion') (published at 830 F. Supp. 1525) . The
district court denied Hercules' motion in part, refusing to
dismiss discharge violations that occurred after the complaint
was filed. March 1993 Opinion at 21. The court granted summary
judgment for plaintiffs as to 60 discharge violations. Id. at
39-40. Plaintiffs sought and were granted interlocutory review
by this Court of the district court's decision regarding the
sufficiency of plaintiffs' pre-complaint notice letter. See JA
971-999 (published at 830 F. Supp. 1549); JA 1033.
- 6 -
356
DISCUSSION
The Clean Water Act, like most federal environmental
lavs, authorizes private citizens to bring enforcement actions
against violators of the Act. CWA Section 505, 33 U.S.C. 1365.
The citizen suit provision is an important adjunct to
governmental enforcement efforts. It embodies congressional
recognition that, due to limited resources, the federal or state
government cannot shoulder the entire burden of enforcement
actions to bring violators into compliance with the Act.
Congress, recognizing that citizen suits should serve
as a supplement to government enforcement efforts, placed several
significant limitations on citizen enforcement authority. In
particular, Section 505(b) of the CWA provides that no citizen
suit may be commenced under Section 505(a)(1)
prior to sixty days after the plaintiff has given
notice of the alleged violation (i) to the
Administrator, (ii) to the State in which the alleged
violation occurs, and (iii) to any alleged violator of
the standard, limitation, or order(.)
*****
Notice under this subsection shall be given in such
manner as the Administrator shall prescribe by
regulation.
33 U.S.C. 1365(b). Accordingly, a private citizen may not
commence an action until 60 days after giving notice to the EPA,
the State, and the alleged violator.3-/ The 60-day notice
2/ In addition to the 60-day notice requirement, citizen suits
are subject to two other express statutory limitations. First, a
citizen suit may be preempted by certain types of prior
administrative or judicial enforcement actions by the EPA or the
(continued. . .)
- 7 -
357
requirement is a 'mandatory, not optional, condition precedent
for suit.- Hall atrom Vi Tillamook County. 493 U.S. 20, 26 (1989)
(construing the comparable notice requirement under the Resource
Conservation and Recovery Act, 42 U.S.C. 6972); National
Environmental Found, v, Mfi Rail Corp. . 926 F.2d 1096, 1097 (11th
Cir. 1991).
The notice requirement reflects congressional desire to
strike a balance between encouraging citizen enforcement of the
CWA and limiting the burden on judicial and private resources
created by disputes which can be readily resolved. See
Ha 11 strom. 493 U.S. at 29. The notice requirement has two
recognized purposes. First, notice helps to obviate the need for
citizen suits by allowing government agencies to take primary
responsibility for enforcing environmental regulations. Id.
Second, notice affords the alleged violator "an opportunity to
bring itself into complete compliance with the Act" and thereby
avoid citizen enforcement. IjL. (quoting Gwaltney of Smithfield,
Ltd. v. Chesapeake Bav Found.. Inc.. 484 U.S. 49, 60 (1987)).
Thus, "far from being a mere formality, prior notice was viewed
by Congress as crucial in defining the proper role of the citizen
1/ (...continued)
State. See 33 U.S.C. 1319(g)(6); 33 U.S.C. 1365(b)(1)(B).
Second, Section 505(c)(3) of the CWA requires the citizen-
plaintiff to serve a copy of the complaint on the Attorney
General, and requires 45 days' notice to the Attorney General and
the EPA before a consent decree is entered in any citizen suit.
33 U.S.C. 1365(c) (3) . Citizens are also limited to bringing suit
to address ongoing violations. Gwaltney of Smithfield. Ltd. v.
Chesapeake Bav Found. Inc.. 484 U.S. 49, 60 (1987).
- 8 -
358
suit.' Walls v. Waste Resource Corp. . 761 F.2d 311, 317 (6th
Cir. 1985).
In essence, the role of the citizen suit is to compel a
violator to bring itself swiftly into compliance with the Atffc.
Because the citizen suit provision serves important CWA goals,
the EPA, the agency with primary responsibility for enforcing the
Act, has an interest in promoting responsible citizen suit
efforts to bring violators into prompt compliance.
Furthermore, with respect to the notice requirements,
Section 505 provides that the notice conform to specific
requirements defined by the EPA. 33 U.S.C. 1365(b). The EPA has
promulgated regulations on the citizen suit notice requirements.
40 C.F.R. 135.1-135.4. In particular, the required contents of
such notice are specified at 40 C.F.R. 135.3(a):
Violation of standard, limitation or order. Notice
regarding an alleged violation of an effluent standard
or limitation or of an order with respect thereto,
shall include sufficient information to permit the
recipient to identify the specific standard,
limitation, or order alleged to have been violated, the
activity alleged to constitute a violation, the person
or persons responsible for the alleged violation, the
location of the alleged violation, the date or dates of
such violation, and the full name, address, and
telephone number of the person giving notice.
The 60-day notice requirement has direct application to
the United States in two different ways. First, notice provides
the EPA with information necessary to determine whether to pursue
a civil enforcement action against an alleged polluter. Second,
federal facilities are subject to citizen enforcement suits.
- 9 -
359
Notice provides those facilities with an opportunity to come into
compliance with the Act prior to such suits.
In keeping with these various interests in the notice
requirement, this brief endeavors to set forth the general views
of the federal government regarding the proper interpretation and
application of EPA's regulation. Because the issue of the
sufficiency of the 60-day notice letter before this Court is
primarily a factual one, we take no position on the resolution of
the factual disputes on appeal.
A. Notice must provide sufficient information to
permit identification of the specifio standards
and limitations alleged to have been violated.
Properly read as a whole, EPA's regulation requires the
60-day notice letter to provide notice of the specific categories
of alleged permit violations of which the citizen-plaintiffs
complain during a discrete time period. EPA's regulation
requires that the 'notice regarding an alleged violation of an
effluent standard or limitation* must provide sufficiently
detailed information to permit the recipient — i.e. . the EPA,
the State, and the alleged violator — to identify, among other
items, the specific standard or limitation alleged to have been
violated, the activity alleged to constitute the violation, and
the date or dates of such violation. 4/
4/ The regulation requires identification of a 'specific
standard or limitation," not merely an allegation that the
defendant is in violation of the more general term "effluent
standard or limitation* as defined in Section 505(f) of the CWA,
33 U.S.C. 1365(f). In this case, the "effluent standard or
limitation" alleged to have been violated is defendant's NPDES
"permit or condition thereof." 33 U.S.C. 1365(f)(6).
- 10 -
360
In the context of NPOES permit violations, the EPA
regulation envisions that citizen-plaintiffs would identify in
their initial notice letter the violations on which they intend
to bring suit. Broad allegations that a party is in violation of
a certain NPDES permit, without more, do not satisfy the detailed
requirements of 40 C.F.R. 135.3. Similarly, the mere statement
that citizen-plaintiffs plan to supplement a list of pre-notice
violations upon further review of the alleged polluter's record
does not sufficiently put the EPA, the State, and the alleged
violator on notice of all subsequent violations of effluent
limitations or standards with respect to an NPDES permit.
General and open-ended notices, stating only that an
NPDES permit has been violated or that additional post-notice
violations may be subsequently alleged by citizen-plaintiffs, do
not inform the alleged polluter of what it must do to bring
itself into compliance. Rather, more specific notice providing
better identifying information, such as the period of violation
and the involved pollutants, is necessary to satisfy the notice
requirements set forth in EPA's regulation.5-/
5/ Of course, the resolution of whether a notice letter
provides information that is specific enough to put the recipient
on notice of particular alleged violations is ultimately a
question of fact that must be resolved by the district court. In
any event, we note that in many cases, an NPDES permit will
include effluent limitations for numerous pollutants with respect
to numerous different outfalls. We submit that in such cases
involving more *complex* permits, more specificity may be
required (e.g. . identifying the pollutant and outfall at which
the violation occurred; the week, month, or quarterly time period
in which the violation occurred) to satisfy the requirements of
EPA's regulation.
- 11 -
361
Moreover, with respect to violations of effluent
limitations set forth in an NPDES permit, the identification by
citizen-plaintiffs of the particular types of effluent
limitations being violated is not particularly burdensome. The
CWA's public disclosure requirements, Section 308(c) of the CWtf*
33 U.S.C. 1318(c), ensure that citizen-plaintiffs have the right
to access relevant information contained in discharge monitoring
reports ('DMRs').*/ See Natural Rpgnnreea Defense Council v.
TP-vaco Refining j Klcto. . 2 P. 3d 493, 501 (3d Cir. 1993). NPDES
permits require the filing of DMRs, and most discharge violations
are readily revealed by the DMRs. In view of the availability of
such information and the purposes of the notice requirement,
where the alleged violations may be ascertained from the DMRs or
other publicly available reports, EPA's regulation should be
interpreted to require that such categories of pre-notice
effluent limitation violations be mentioned in a 60-day notice
letter prior to the filing of a citizen suit.
As Congress indicated, EPA's regulations 'should not
require notice that places impossible or unnecessary burdens on
citizens but rather should be confined to requiring information
necessary to give a clear indication of the citizens' intent."
See S. Rep. No. 414, 92nd Cong., 1st Sess. 79-80 (1971),
reprinted in 1972 U.S.C. C.A.N. 3668, 3745. It is not unduly
burdensome for the citizen-plaintiff to specifically identify
£/ Since the DMRs are prepared by the defendant who is required
to retain them, 40 C.F.R. 122.41(j) (2) , they are also accessible
to the defendant.
- 12 -
362
pre-notice violations of the NPDES permit that are observable
from the DMRs or other publicly available reports. The citizen-
plaintiff nust identify specific categories and periods of
violations of the NPDES permit sufficient to put the EPA, the
State, .and the alleged violator on notice Of alleged violation^.
Such notice, which satisfies the requirements of 40 C.F.R. 135.3,
enables the alleged violator to determine what It must do to
avoid suit and to comply fully with the Act. In short, failure
to provide such notice should result in dismissal of claims
alleging pre-notice violations that are identifiable from the
DMRs or other public records.
B. While notice should be required for violations
that cannot be detected from public records, the
district court should facilitate discovery of suoh
violations.
The United States recognizes that for a variety of
reasons there are certain pre-notice violations that cannot be so
readily identified by citizen-plaintiffs. 2/ a district court's
application of the EPA regulation to this category of violations,
i.e. . violations not identifiable in public documents, should be
guided by somewhat different considerations. We submit that the
regulation, and the policy it serves, require that a new or
supplemental 60-day notice of such violations, which are not
2/ For example, plaintiffs in this case explain in their briers
that many monitoring, reporting and record-keeping violations ar*
not apparent from the face of the DMRs and other publicly
available reports. See NJPIRG's Opening Brief at 17, 33;
NJPIRG's Reply Brief at 21-22. They also note, however, that in
some instances, the DMRs do disclose such violations. See
NJPIRG's Opening Brief at 15 n.9.
- 13 -
363
continuous or intermittent violations of the type already stated
in a notice, be given before civil prosecution of such claims nay
proceed, provided that the district court allows or facilitates a
broad scope of discovery in the initial citizen suit. The
citizen-plaintiffs should. have the opportunity, once a complaint
is filed, to use discovery techniques to determine if there are
other violations reasonably related to those in their notice
letter that are not apparent or readily discernible. The
district court should not permit defendant to use the
citizen-plaintiffs' notice letter to circumscribe the scope of
discovery. Rather, the court should give effect to the broad
scope of Rule 26(b) of the Federal Rules of Civil Procedure. S/
Upon expiration of another 60-day notice period, the complaint
may then be amended or supplemented to address the newly
discovered, and unrectified, violations. 2/ By proceeding in this
manner, any ultimate injunctive relief granted by the district
court will be as meaningful and comprehensive as possible.
2/ See Fed. R. Civ. P. 26(b)(1) ('Parties may obtain discovery
regarding any matter, not privileged, which is relevant to the
subject matter involved in the pending action * * *•");
Qppenheimer Fund. Inc. v. Sanders. 437 U.S. 340, 351 (1978) (Rule
26(b)(1) has been construed "broadly to encompass any matter that
bears on, or that reasonably could lead to other matter that
could bear on, any issue that is or may be in the case*) ; United
States v. Farlev. 11 F.3d 1385, 1390 (7th Cir. 1993) ('The
Federal Rules of Civil Procedure contemplate broad discovery") .
2/ Plaintiffs may amend their complaint as of right before the
filing of a responsive pleading. See Fed. R. Civ. P. 15. In
addition, federal courts freely allow amendment of complaints to
conform to the evidence. Id. Moreover, in the interest of
judicial economy, federal courts in these situations should allow
permissive amendments to the complaint, rather than encourage the
filing of multiple civil actions.
- 14 -
364
Only in this way can a citizen-plaintiff discover and
seek to remedy violations that are not readily ascertainable from
public records. The alleged violator also receives fair
treatment under this approach. The alleged violator is still
given its 60 days to rectify violations and is protected against
the citizen-plaintiff's potential failure to put the violator on
timely notice of new violations discovered during the litigation.
At the same time, the alleged violator cannot use the notice
requirement as a shield to protect it from claims that the
citizen-plaintiff could not reasonably be expected to detect
before giving its initial notice.
Such supplemental notice also alerts the EPA and the
State of the newly alleged violations, giving them the
opportunity to take an enforcement action against the polluter.
Unlike allegations regarding effluent limitation violations,
which normally may trigger a broad agency review of a defendant's
permit files, allegations regarding recordkeeping violations, for
instance, may only be brought to the government's attention in a
60-day notice letter.
Separate notice letters are not required for each and
every new violation discovered after the filing of the initial
notice, but for only those categories of violations different
from those already mentioned in prior notices. See infra, Section
C. A requirement that such new violations be stated in separate
notice letters furthers a primary objective of the citizen suit,
which is to bring the polluter into complete compliance with the
- 15 -
365
Act. Where notice is provided of new violations, the polluter
will be given a 60-day opportunity to cure the wrongdoing. Upon
expiration of the 60-day period, the complaint may then be ■*»■
amended or supplemented to include the newly discovered, and
unrectified, violations.'
Where violations are ongoing under the Gwaltney
standard, a district court will have the authority to grant
injunctive relief and assess penalties as to such violations.
Ultimately then, the goal of this approach is to ensure that any
injunction issued and penalties assessed by the court address all
meaningful violations of the CWA. In this manner, the statutory
notice requirements of the Act will" serve the goals of the
citizen suit, i.e. . ensuring that regulated entities are fully
complying with the CWA and deterring other potential violators of
the Act.
C. Later-occurring continuous or intermittent
violations already mentioned in prior notices need
not be listed in subsequent notice letters.
In our view, the CWA notice requirement does not
require separate notice to be given for continuous or
intermittent violations that have already been the subject of
previous notice letters. Accordingly, the district court erred
in holding that a new 60-day notice letter is required for all
post-notice violations that occurred prior to the filing of the
complaint. The notice requirement is designed to inform the
alleged polluter of the specific conduct of which citizen-
plaintiffs complain so that it has the opportunity to cure the
- 16 -
366
wrongdoing. There is no need for repetitive, additional notices
of continuous or intermittent violations for which notice has
previously been given. In such cases, the polluter has already
been given an opportunity to rectify the violations.
Similarly, notice affords the EPA or the State an
opportunity to pass upon the claims of alleged violations prior
to a citizen-plaintiff's suit to enforce specific permit
limitations or conditions. In most cases, where the regulatory
agencies previously have been informed of specific violations of
the Act, they will have received sufficient information from
which to decide whether or not to launch an enforcement action
against the polluter. Thus, the objectives of the CWA's notice
requirement are satisfied without new notices of continuing
violations.
The CWA permits citizen suits only in situations where
there may be ongoing violations. Cwaltney. 484 U.S. at 60-64.
It is important, however, that this Court recognize that the
CWA's jurisdictional requirement that citizen-plaintiffs allege a
'state of either continuous or intermittent violation' at the
time when the complaint is filed, see id. at 57, is independent
of the Act's 60-day notice requirement. These are two separate
jurisdictional requirements for bringing a citizen suit. First,
there is the requirement that citizen-plaintiffs provide a 60-day
notice of intent to file suit. See 33 U.S.C. 1365(b). Second,
there is the requirement that the complaint contain good-faith
- 17 -
367
allegations of ongoing violation by the alleged polluter. See 33
U.S.C. 1365(a); Gwaltnev. 484 U.S. at 64-67.
In the present case, the district court has apparej^ly
confused the issues of what allegations of continuing violations
must be nade to support jurisdiction under cvaltnev and what
constitutes adequate notice of such violations under the Act.
See March 1993 Opinion at 21-24. The determinative question
regarding the adequacy of a 60-day notice letter is not whether
continuing violations occurred before or after the filing of the
complaint, but rather whether specific notice has been given
regarding such violations. There is no valid reason to apply the
notice obligation differently based -on when the complaint was
filed. Therefore, we believe that the district court erred in
holding that a new 60-day notice letter is required for all,
pre-coroplaint violations, regardless of whether they are
continuous or intermittent violations of those already listed in
prior notices. See March 1993 Opinion at 21-24.
COMCL08XOM
EPA's notice regulation requires that, where the
alleged categories of violations of defendant's NPDES permit may
be identified from the DKRs or other public records, the citizen-
plaintiff Bust identify those violations in a 60-day notice
letter prior to the filing of a citizen suit. Once a citizen
enforcement action has been filed, we encourage the district
courts to permit broad discovery to allow the citizen-plaintiff
the opportunity to determine whether there are other violations
- 18 -
368
that are not apparent or ascertainable from the face of the DMRs
or other publicly available reports. Where the citizen-plaintiff
has identified new types of violations through the discovery
process, it must file a new or supplemental 60-day notice letter
that includes those newly discovered violations. Upon expiration
of that 60-day notice period, the complaint may then be amended
or supplemented to address the newly discovered, and unrectified,
violations. As a result, the district court will have
jurisdiction over all violations for which it may hold defendant
liable. We believe that this reasonable approach to the
statutory notice requirements of the Act will further a primary
goal of the citizen suit, i.e. . ensuring that regulated entities
come into full compliance with the CWA.
Accordingly, the district court should make the
following inquiries regarding proper notice of NPDES permit
violations under EPA's regulation. First, the court should
determine what violations could have been ascertained from public
records prior to notice, and dismiss those violations not stated
in the 60-day notice letter. Second, the court should determine
what new types of violations are not mentioned in the notice
letter, and require that a new 60-day notice letter be issued
regarding those violations. Finally, the court should not
require separate notice to be given for post-notice continuous or
intermittent violations that have already been mentioned in
previous notice letters.
- 19 -
JULY 1994
90-1-24-177-254
369
Respectfully submitted,
LOIS J. SCHIFFER
Retina Assistant Attorney General
ELLEN J. DURKEE
EVELYN S. YING
Attorneys. Department of Justice
Environment I Natural Resources
Division
Washington. D.C. 2Q5?Q
f202) 514-2754
- 20 -
370
CERTIFICATE OF 8BRVICB
I certify that two copies of the foregoing Brief for
the United States as Amicus Curiae, have been served upon *
counsel, properly addressed this 7th day of July 1994, to:
Bruce J. Terris - (By Hand Delivery)
Carolyn Smith Pravlik
Terris, Pravlik & Wpigner
1121 12th Street, N.W.
Washington, D.C. 20005
Joel Schneider
Manta and Helge
Suite 600
1040 North Kings Highway
Cherry Hill, New Jersey 08034
Marianne Dugan
Michael Axline
Western Environmental Law Center
44 West Broadway, Suite 200
Eugene, Oregon 97402
David A. Nicholas
Charles C. Caldart
National Environmental Law Center
29 Temple Place
Boston, Massachusetts 02111
Mark Van Putten
National Wildlife Federation
Great Lakes Natural Resource Center
506 E. Liberty, Second Floor
Ann Arbor, Michigan 48104-2210
Charles M. Tebbutt
Allen, Lippes & Shonn
1260 Delaware Avenue
Buffalo, New York 14209-2498
Daniel Cooper
San Francisco Baykeeper
468 Duboce
San Francisco, CA 94117
(By Fax and Overnight
Delivery)
(By Overnight Delivery)
(By Overnight Delivery)
(By United States Mail)
(By United States Mail)
(By United States Mail)
fLYN S.
Attorney, lDepartm4At of^Justice
Washington, D.C. 20530
(202) 514-2754
NOMINATIONS OF LAURIE O. ROBINSON, TO
BE ASSISTANT ATTORNEY GENERAL, OF-
FICE OF JUSTICE PROGRAMS; NANCY E.
GIST, TO BE DIRECTOR, BUREAU OF JUS-
TICE ASSISTANCE; JAN M. CHAIKEN, TO BE
DIRECTOR, BUREAU OF JUSTICE STATIS-
TICS; AND JEREMY TRAVIS, TO BE DIREC-
TOR, NATIONAL INSTITUTE OF JUSTICE
THURSDAY, AUGUST 18, 1994
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 10:04 a.m., in room
SD-628, Dirksen Senate Office Building, Hon. Carol Moseley-
Braun presiding.
Also present: Senators Simpson and Brown.
OPENING STATEMENT OF SENATOR MOSELEY-BRAUN
Senator Moseley-Braun. The hearing will come to order. This
morning the Judiciary Committee will conduct a hearing regarding
the following nominees: Laurie Robinson to be the Assistant Attor-
ney General for the Office of Justice Programs; Nancy Gist to be
Director of the Bureau of Justice Assistance; Jan Chaiken to be the
Director of the Bureau of Justice Statistics; Jeremy Travis, to be
Director of the National Institute of Justice.
As is customary, we will hear first from the Senators and Rep-
resentatives who wish to introduce nominees to the committee, but
before we turn to them let me state for the record that each nomi-
nee has completed a detailed questionnaire on his or her Qualifica-
tions, experiences, finances, and philosophy. Portions of the ques-
tionnaire available to the public will be printed in the record of this
hearing.
We will also keep the record open for a limited time in case mem-
bers of the committee would like to submit written questions, and,
of course, we will place in the record the full introductory state-
ment of home State senators. As I am the only member of the com-
mittee here at this time, we will dispense with opening statements.
But I just want to say for the nominees and their families and visi-
tors who are here today, these hearings are held pursuant to arti-
cle II, section 2 of our Constitution that calls on the Senate to ad-
vise and consent with regard to certain positions. I try to move
(371)
372
them along. Most of the nominees have waited a long time for this
day. You have been patient. You have dealt with the vagaries of
the modern vetting process which is our present-day equivalent of
trial by ordeal. [Laughter.]
Having done that, at this point, you have been cleared and ap-
proved already by so many different agencies and offices. This com-
mittee, of course, will fulfill and is fulfilling its constitutional re-
sponsibilities, but I want to say to all of you congratulations on get-
ting this far, and I hope that this hearing is relatively painless for
all of you. We will bifurcate today's hearing.
First, we will have the nominees and any representatives who
are here to introduce them and then thereafter we will proceed
with questions. The distinguished representative from Washington,
DC, Representative Eleanor Norton is here to introduce Ms. Robin-
son, and so Representative, if you would like to start with your in-
troduction.
STATEMENT OF HON. ELEANOR HOLMES NORTON, A REP-
RESENTATIVE IN CONGRESS FROM THE DISTRICT OF CO-
LUMBIA
Delegate Norton. Thank you very much, Madam Chairman. It
is a very special pleasure to appear before you this morning and
to introduce Laurie Robinson, the President's nominee to be Assist-
ant Attorney General for the Office of Justice Programs. If I may,
Madam Chairman, I would like to introduce as well her family and
ask to stand Sheldon Krantz, an attorney here in Washington, and
10-year-old Teddy.
Teddy. Eleven.
Senator Moseley-Braun. Eleven. We will correct the record. It
is 11. [Laughter.]
Delegate Norton. I stand corrected. Madam Chairman, it is a
mark of the outstanding qualifications of this nominee that she
came to the Justice Department as an Associate Attorney General
in 1993, and is now being nominated by President Clinton to head
an important division of the department. Ms. Robinson is a Phi
Beta Kappa, magna cum laude graduate of Pembroke College and
Brown University. For 7 years, she was director of the American
Bar Association's Criminal Justice Section and for an additional 7
years of its D.C. Professional Services Division.
She has published widely in legal journals and Ms. Robinson, as
well, has given generously in public service positions of her time
on boards, among them as chair of the National Forum on Criminal
Justice and as a member of the board of the Victims Assistance
Legal Organization. It is a special pleasure for me, Madam Chair-
man, a native Washingtonian, to introduce this native daughter
and to tell you how proud Washingtonians are of her nomination.
Senator Moseley-Braun. Thank you very much, Representative.
Ms. Robinson, we will start with you momentarily. I wanted to, if
it is all right, go through the introductions. We have such a busy
schedule with health care and the like going on, and I see Senator
D'Amato is here to introduce another nominee. So we will come
back to your opening statement and swear you in momentarily.
Ms. Robinson. Thank you.
373
Senator Moseley-Braun. Senator D'Amato, the Senator from
New York.
STATEMENT OF HON. ALFONSE D'AMATO, A U.S. SENATOR
FROM THE STATE OF NEW YORK
Senator D'Amato. Well, Madam Chairman, it is good to be with
you again today. We have spent a lot of time together the past sev-
eral weeks, the evenings, starting early in the morning, going into
the next morning. I kind of miss that. [Laughter.]
Senator Moseley-Braun. Senator D'Amato, your presence, your
company was fine, but I did not miss what we went through at all.
Senator D'Amato. Madam Chairman, I am deeply honored and
pleased to be here today to present to you and to this committee
Mr. Jeremy Travis, whom the President has nominated to be Direc-
tor of the National Institute of Justice. I would also like to recog-
nize Mr. Travis' wife, Susan Herman, who is a very, very distin-
guished person in her own right. She serves as the director of the
Domestic Violence Division at the Victims Service Agency in New
York City, and I know that that is something that is an area of
concern, of special concern, to yourself, and you have authored leg-
islation to address the problem of domestic violence. This is an un-
usual family, a family tremendously dedicated to law enforcement
and to improving the quality of life for people.
In 1974, Mr. Travis served as the first director of the Victims
Witness Assistance Project, a very innovative program designed to
provide assistance to crime victims. In 1977, he was named the
first director of the New York City Criminal Justice Agency, an
agency which has been a leader in bail reform and the introduction
of new technology into the criminal justice system. After graduat-
ing cum laude from New York University Law School in 1982, Jer-
emy Travis began what has become a very distinguished career in
law and public service.
He clerked for Justice Ruth Bader Ginsburg, who at the time
was sitting on the Court of Appeals for the District of Columbia.
Mr. Travis has also served 3 years as special adviser to Mayor Ed
Koch, and in 1990, he served as the chief counsel for the House of
Representatives Subcommittee on Criminal Justice. As you can see,
Jeremy Travis has a wide and diverse and very deep area of exper-
tise in the criminal justice system. Wherever he has gone, he has
been outstanding. He also spent a significant portion of his career
working in the community.
He worked as an associate with the American Civil Liberties
Union in New York, the American Civil Liberties Union Women's
Rights Project, and the NAACP. Jeremy Travis returned to New
York in 1990 at the request of Lee Brown to take the position of
Deputy Commissioner for Legal Matters at the city of New York
police department, and in this position Mr. Travis has served and
continues to serve with particular distinction developing new and
creative approaches to some of the most difficult problems facing
the criminal justice system.
Mr. Travis' ideas have saved police resources, and have helped
keep dangerous criminals off the street. Jeremy Travis comes be-
fore this committee with a unique and diverse background. His cre-
dentials are many, and he is certainly no stranger to hard work.
374
I can think of no other nominee more worthy of this very, very im-
portant position than Jeremy Travis. I commend the President for
recommending Mr. Travis, and I urge this committee's swift ap-
proval. I thank the chair.
Senator Moseley-Braun. Thank you very much, Senator
D'Amato. And I know how busy you are, and I thank you for your
introduction of this nominee, and so I want to again thank you for
taking time out of your busy schedule to come by and to make this
introduction.
Senator D'Amato. Thank you, Madam Chairman.
Senator Moseley-Braun. You are very welcome. Mr. Travis, I
would also indicate that Senator Moynihan would have liked to
have been here, but as you know, he is on the floor hostage to the
health care bill, and so he could not join us this morning.
We have just been joined by Senator Simpson, and Senator,
would you like to make an opening statement or
Senator Simpson. Just an apology, Madam Chairwoman. I went
to the other Judiciary Committee room, and it looked strange in
there and I left. [Laughter.]
So here I am ready to go to work. It is my shift, and I enjoy
working with you, and it is a great pleasure to have you on the Ju-
diciary Committee, and you are a wonderful contributing member,
and I certainly have come to enjoy you and your work.
Senator Moseley-Braun. Well, thank you very much, Senator
Simpson. Senator Simpson does the best job of talking about senior
issues than anyone I know in the U.S. Senate, and he is a joy to
work with as well.
Senator Simpson. The AARP is outside waiting for me now.
[Laughter.]
Senator Moseley-Braun. All right. Senator Kennedy had called
and indicated that he wanted to introduce Nancy Gist and Jan
Chaiken. He cannot; again, this is because of health care. He is
tied to his desk at the floor literally to work that bill, and so will
not be here to introduce those nominees. I should say probably for
the record in spite of the fact that I try to make it a point person-
ally not to comment on nominees that come before the Judiciary
Committee before the hearing, I have to confess — I do not know if
that is the right word — to a 20-year acquaintance with Nancy Gist.
I am personally very proud that the President has nominated her.
I know Nancy's background, and you will hear that momentarily,
but to say that I am just delighted, and I cannot imagine anyone
better for the position than Nancy Gist. I want to thank the Presi-
dent for what he has done and congratulate and commend Ms.
Reno for her nomination of Nancy Gist as well. So Ted Kennedy
was not here, Nancy, but [Laughter.]
All right. Let us start with Laurie Robinson from Washington,
DC, OK. Would you remain standing to take the oath? Do you
swear the testimony you will give before this committee shall be
the truth, the whole truth, and nothing but the truth?
Ms. Robinson. I do.
Senator Moseley-Braun. Ms. Robinson, I understand you have
an opening statement for the committee.
375
TESTIMONY OF LAURIE O. ROBINSON, WASHINGTON, DC, TO
BE ASSISTANT ATTORNEY GENERAL, OFFICE OF JUSTICE
PROGRAMS
Ms. Robinson. Thank you. Madam Chairwoman, Senator Simp-
son, it is hard to think of an issue that the American public cares
more strongly about right now than crime. I have had the oppor-
tunity over the past 20 years to work with people from all parts
of the criminal justice system, prosecutors, corrections, judges, law
enforcement, juvenile justice, and community and victim groups. I
know they are often impatient and cynical about what Washington
can do about this issue. I think we all understand their frustration.
But despite these terrible problems, I am optimistic about our abil-
ity to help communities do something about this. I am optimistic
not only because there are sound programs out there in areas like
policing and corrections, but also because as I have traveled around
the country, I have had a chance to see the energy and enthusiasm
in communities, neighborhood groups organizing often without any
government money to patrol their neighborhoods, run after-school
programs, work with police to close down drug markets.
Despite the cynicism that nothing works, there are good and suc-
cessful programs out there like the one-room program I saw in a
Los Angeles public housing facility which is helping kids to stay in
school and transition into jobs after graduation, or the community
policing program in Chicago that has so successfully gotten under-
way or tne boot camp program in New York State which is really
helping offenders reintegrate back into the community with a very
intensive after-care program.
I think the Federal Government has a critical role to play in
helping here. First, it seems to me we should be ensuring that we
get information out about good programs to communities that need
ideas on where to start, and I do not think the Federal Government
has done a good enough job of that in the past. We have a new
interdepartmental effort at OJP, an Internet-based clearinghouse
called PAVnet that is taking some important steps in that direc-
tion.
Second, I think we should be ensuring we get money out to sup-
port good programs, and we do know from our research that there
are effective approaches out there to gangs, on policing, on law en-
forcement technology, on prison programs. So we need to ensure
that we are spending Federal money in the wisest possible way.
Third, we need to ensure that we make information readily ac-
cessible to State and local officials about how to get Federal money,
and as one step in that direction, at OJP we have set up an 800
number to provide information and kind of one-stop shopping about
Federal grants. I also know from the years I worked with OJP and
LEAA from the outside that this agency has had problems, and
that too often in the past it has been plagued by in-fighting among
the bureaus. I want to tell you briefly about some steps that the
Attorney General and I in my acting capacity have taken in recent
months along with the help of some very dedicated OJP employees.
We have set up coordinating committees of program staff to ad-
dress common issues which cut across the bureaus, issues like fam-
ily violence and criminal justice information systems. We have co-
ordinated our 1994 program plans for spending to stress common
376
themes like violence reduction and youth crime. We have encour-
aged an unprecedented number of joint efforts among the bureaus
and also with outside agencies like the State Justice Institute and
the Department of Defense.
We have been working aggressively with other domestic depart-
ments to share information and build common programs. Earlier
this week, we held an unprecedented conference on youth crime
that was cosponsored by seven Federal departments.
So, in summary, I am optimistic about our ability to help State
and local governments really make progress in this area. I think
we have a challenge and a tremendous opportunity, and I am very
honored that the President has nominated me for this position.
Thank you.
Senator Moseley-Braun. Thank you very much, Ms. Robinson.
Senator Simpson.
QUESTIONING BY SENATOR SIMPSON
Senator Simpson. Thank you, Madam Chairwoman. I have read
of your record and your writings and your work with the ABA. We
have had some difficulty with them in the past, too, Madam Chair-
woman, with regard to their ratings system. [Laughter.]
I see the witness is smiling, but we did just approve unanimously
Judge Williams.
Senator Moseley-Braun. Yes.
Senator Simpson. And he was rated as unqualified.
Senator Moseley-Braun. Right.
Senator Simpson. During my 16 years here, it has been really re-
markable to see that they meet in confidence and then pour out
their recommendations without imparting any knowledge to us as
to how they arrived at their recommendations. That is not Laurie
O. Robinson's job, but I just wanted to fling that in.
Senator Moseley-Braun. Well, I am glad you did. I am glad you
did, Senator Simpson. We had great discussion in this committee
regarding the bar association procedures and the need for reform
there, and I hope, I am sure the message frankly has gotten out,
but I think the more that we can discuss that issue, the better and
the faster those reforms will take place.
Senator Simpson. I will look forward to working with you on
that. I know you share my view. Crime is the real and growing
problem. I was on the conference committee with the crime bill. I
do hope we can get a crime bill. I will work toward that. There is
going to have to be some give and take of both sides. But crime in
the rural areas is growing, and I am not sure that the Federal Gov-
ernment under any recent administration has given sufficient at-
tention to rural crime.
What is the Office of Justice Programs doing about this impor-
tant, and some would say neglected, aspect of the crime problem?
Ms. Robinson. Senator, I would agree with you that there has
not been sufficient attention to this area in the past. I know our
Bureau of Justice Statistics shows there has been a steady increase
in rural crime over the last decade. I know from your State and
others, we do know there is a growing problem. I have been pleased
to see that OJP has begun focusing on this issue. For example,
there is a community policing initiative working in rural areas and
377
projects that are underway in four States — Maine, Idaho, Virginia,
and Florida — which is really launching some important work in
how do we address problems in the rural jurisdictions.
We have a project on community crime prevention looking and
focusing on rural areas, and three or four projects will be awarded
very shortly in that area. Under the police hiring supplement, the
$150 million program this past year, as I think you know, half of
the money went to jurisdictions under 150,000 and many of those
were below 50,000. So there has been a focus, but I agree with you
that we can and should do more.
Senator Simpson. Will you be respecting the independence re-
quired of the NIJ and B JS when you review their reports and their
studies?
Ms. Robinson. Yes, Senator, during my time with the ABA when
I worked with OJP, I worked very extensively in particular with
NIJ and feel very strongly about the need for independence of re-
search and statistics and would intend if confirmed to very much
respect that independence.
Senator Simpson. If they came up with a report that is critical
of the administration or their law enforcement activities, what
would your response be? Would you allow that report to be pub-
lished?
Ms. Robinson. Facts are facts, and statistics if properly done are
real, and I think we need to address that and be open about infor-
mation. I think what we do not want is a screening process that
looks for political angles on things, and I would not support that.
Senator Simpson. Well, I have seen that in several administra-
tions, and when it is uncovered it is always rather certainly ugly
and inappropriate, and it has happened in the 1980's and on into
the present time, but I just hope you will be part of letting it come
to the surface if it is there. Will you do that?
Ms. Robinson. Yes, Senator. I view myself as a criminal justice
professional, and I have worked in this field for over 20 years, and
feel strongly about the integrity of research and statistics.
Senator Simpson. Thank you, Madam Chairwoman.
QUESTIONING BY SENATOR MOSELEY-BRAUN
Senator Moseley-Braun. Thank you very much, Senator Simp-
son. Ms. Robinson, the Office of Justice Programs is the primary
Federal agency designated to help State and local governments ad-
dress crime and violence. The OJP and its bureaus identify emerg-
ing criminal justice issues, develop new ideas and test promising
approaches to address these issues, evaluate results and dissemi-
nate these findings and other information to the country. If con-
firmed, what are your major goals for the OJP?
Ms. Robinson. Senator, one of the things, as I mentioned before,
that I very much think we need to and should be doing is to ensure
that we are getting the word out about sound programs and prom-
ising programs that are working in communities around the coun-
try, and I do not think the Federal Government and OJP have done
a good enough job about that in the past.
When an issue of this kind is of such importance to communities
and people throughout this country, we need to be telling people in
Dayton what is working in Minneapolis or in Syracuse, what is
378
working in Pensacola, and not have them rely on a give and take
where they may have to go through a period of time of experimen-
tation when there is information we can get out. So I see that as
a very, very critical goal. A second goal would be to ensure that we
were working on a coordinated basis with other Federal depart-
ments that have common themes and missions. Again I do not
think that has been done well enough in the past, and it is hard
work.
But if we are expecting people at the local level to be coordinat-
ing between social services, housing, education, law enforcement,
and the like, it seems to me we have got to get our act together
at the Federal level as well. So I see that as a very high priority.
Senator Moseley-Braun. Thank you, and I am delighted to hear
that, because the communication of information and the coordina-
tion of activities here at the Federal level is so important in shap-
ing the climate of opinion, shaping the debate regarding something
that touches people so closely where they live.
I have a particular concern with regard to juvenile justice, and
the Office of Juvenile Justice and Delinquency Prevention that
comes under this agency, this office. One of the issues that has
been particularly surprising to me was the patchwork and the
dearth of information or structure for education programs for incar-
cerated juveniles. Some States do a decent job in terms of educat-
ing incarcerated juveniles. Other States allow them to do nothing
more than pump iron all day long and watch TV, and do not do .
very much in terms of taking advantage of the opportunity to pro-
vide educational services to these young people.
So my question to you is, would you see it within the purview
of the goals that you have described to focus in on and to collect
information, and provide that information to us, regarding the sta-
tus of juvenile justice and particularly juvenile education programs
throughout the country?
Ms. Robinson. Clearly that is a very important issue and one on
which we should be providing information. We should also be work-
ing with the Department of Education on that because I know their
work on correctional literacy at the adult level has been very good,
and I am less familiar with their work in the juvenile area, but it
is something we need to explore if we are not already.
The Juvenile Justice Office through a comprehensive strategy is
looking at a variety of issues in areas for how to deal both with
the chronic serious and violent offender and also with younger of-
fenders who have not gotten yet into serious crime where we need
to be addressing how we get them on the right track.
Senator Moseley-Braun. The whole area of juvenile justice is
one that is in a state of change at the present time, driven in part
by the explosion of juvenile violent criminal activity on the one
hand, and on the overcrowding and the particular circumstances
faced by juvenile justice courts and social service mechanisms
throughout the Nation. The courts have been overwhelmed with ev-
erything from status offenders to children who are abandoned and
the like, and have found it very difficult to address specifically the
problem of violent juvenile criminal offenders. There has been some
discussion of taking a look, a wholesale look, at the state of juve-
379
nile justice in the country, and obviously having the information
and the assistance from your office would be critical to doing that.
I would just ask for your assistance and your help with regard
to taking a look at whether or not we are in need of reforms in this
area. The last time you had major juvenile justice reforms was ap-
proximately a hundred years ago. So I think it is an area that is
ripe for reform and would very much encourage and ask for your
help and active participation in that area.
Ms. Robinson. Well, we have this as an extremely high priority.
I think you know the Attorney General views these issues as very,
very important and critical on her agenda as well. The Juvenile
Justice Office budget has been increased for the current and the
coming year, as I understand the recent appropriations actions,
and it is an area of very, very high importance for OJP.
Senator Moseley-Braun. I would ask also with regard to the
iSSUe — again, these are the kind of the criminal justice issues that
have been on the margins up until now and are no longer or should
not be on the margins, and that is not only juvenile justice, on the
one hand, but the issues pertaining to women in prisons
Ms. Robinson. Yes.
Senator Moseley-Braun [continuing]. Is another area that has
been neglected and about which we have precious little good infor-
mation.
Ms. Robinson. Yes.
Senator Moseley-Braun. And I would ask, I see from your cre-
dentials you have written regarding women in the criminal justice
system, and I would like your views briefly about that and where
you see us going in terms of providing initiatives, reforms, and ac-
tivities in this area.
Ms. Robinson. Sure. Senator, I did have the opportunity when
I was at the ABA back in the 1970's to help found a resource center
on women offenders. We also had a very active committee on
women and criminal justice that looked at the roles of women as
employees in the criminal justice system, victims, the area of sex-
ual assault and domestic violence, and women offenders. Sadly, I
think many of the problems plaguing this area are still with us
today 20 years later, I would say maybe particularly in the area
of women offenders. We have recently been talking with the Na-
tional Association of Women Judges about some joint work on this
issue. They are very much interested in it.
I think there have been gains and an increasing consciousness
about problems relating to sexual assault and domestic violence. I
view those personally as high priorities. OJP has been working on
those issues, and we will continue to make those very high prior-
ities.
Senator Moseley-Braun. Finally, with regard to the coordina-
tion; I could not agree more with you that the coordination and co-
operation among and between agencies at the Federal level is so
vitally important, but I would ask you what initiatives you plan to
implement, or how do you plan to impact upon coordination with
State and local governments? Because one of the complaints that
the folks out in the communities have all the time is that Washing-
ton sucks up all the money and hires people to study issues that
they are out having to address and deal with on a day-to-day basis.
380
It seems to me that there is an awful lot of good experience and
expertise at the State and local level, and I would ask you what
is your view regarding coordination and support for local initiatives
in this area?
Ms. Robinson. Maybe one of the benefits of coming into govern-
ment after working on the outside with the Federal Government is
that you do retain a consumer perspective for a long time. I worked
during my ABA years very closely with State and local practition-
ers around this country, and I view them as critical partners with
OJP in making any progress on the issues of crime and violence.
OJP and its predecessor agencies back to LEAA have viewed State
and local government as their key partners in making change and
making anything happen. So that is very deeply ingrained in me
as my philosophy, and I think partnership has got to be our watch-
word.
Senator Moseley-Braun. I am delighted to hear that. I have no
farther questions, Ms. Robinson. Again, thank you very much for
your opening statement and for your candid and straightforward
responses to Senator Simpson and my questions this morning.
Ms. Robinson. Thank you very much.
[The prepared statement of Ms. Robinson follows:]
Prepared Statement of Laurie O. Robinson
Madam Chairwoman and Members of the Committee: I'm pleased to be here
today. Before proceeding, I'd like to introduce my husband, Sheldon Krantz, and my
11-year-old son, Teddy.
I can't think of an issue of greater importance to the people of this country today
than crime. It seems so clear that a well functioning democracy has to insure that
its citizens feel safe when they're going to school, going to work, going shopping —
or just taking a walk on a nice summer night.
I've had the opportunity over the past 20 years to work with people from all parts
of the criminal justice system — prosecutors, corrections, judges, law enforcement, ju-
venile justice — as well as community and victims groups. They're often impatient —
and cynical — about what "Washington can do" about tnis issue. I understand their
frustration. But despite these terrible problems, I'm optimistic about our ability to
help communities do something about them. I'm optimistic not only because we have
sound programs in the areas of policing, corrections, and prevention, but also be-
cause— as I've travelled around the country — I've had a chance to see the energy
and enthusiasm at the community level. Neighborhood groups organizing — often
without any government money — to patrol their neighborhoods, run after-school pro-
grams for teens, work with police to close down drug markets. Despite the cynicism
that "nothing works," there are good and successful programs out there — uke the
one-room program I saw in an L.A. public housing facility which is helping kids stay
in school ancT transition into jobs after graduation; or the community policing pro-
gram in Chicago called CAPS, which is operating in five prototype districts and
planning to expand city-wide; or the boot camp program in New York State which
is helping offenders — through intensive aftercare programs — really reintegrate into
their communities.
I believe the Federal Government has a critical role to play:
• First, we should be insuring that we get information out about good programs
to communities that need ideas on where to start. I don't think the Federal Gov-
ernment has done a very good job of this in the past. Through a new inter-
departmental Internet-based clearinghouse — PAVnet— OJP is taking some im-
portant steps in that direction.
• Second, we should be insuring that we get money out to support good programs.
We know from our research that there are effective approaches on gangs, polic-
ing, prison programs and new law enforcement technology. So we need to insure
we're spending Federal money in the wisest way possible.
• Third, we need to insure that we make information readily accessible to State
and local officials about how to get Federal money. As one step in that direction,
we've set up an 800 number at OJP to provide information and one stop shop-
ping about grants.
381
I know — from many years working with OJP from the outside — that the agency
has had problems, that it has too often been plagued in the past by Bureau in-fight-
ing. I want to tell you about some steps the Attorney General and I, in my acting
capacity, have taken in recent months to address this, with the assistance of many
dedicated OJP employees:
• We've set up coordinating committees of program staff to address common is-
sues which cut across the OJP bureaus— issues like FAMILY VIOLENCE and
CRIMINAL JUSTICE INFORMATION SYSTEMS.
• We've coordinated the '94 OJP Program Plans to stress common themes like vi-
olence reduction and youth crime.
• We've encouraged an unprecedented number of JOINT EFFORTS among the
bureaus, as well as with outside agencies like the State Justice Institute,
HHH's Center for Substance Abuse Treatment, and the Department of Defense.
• And we've been working with the other domestic Federal departments to share
information and build common programs. Earlier this week, e.g., we held a
major conference on youth violence — perhaps a first as an event planned and
cosponsored by seven Federal departments.
So / am optimistic about our ability to help State and local governments make
progress on crime. We have a challenge — and an enormous opportunity, and I'm
honored that the President has nominated me to serve as the Assistant Attorney
General for the Office of Justice Programs. Thank you.
Senator Moseley-Braun. Our next nominee is Nancy Gist. Ms.
Gist, do you solemnly swear to tell the truth, the whole truth and
nothing but, so help you God?
Ms. Gist. I do.
Senator Moseley-Braun. Thank you. Senator Simpson, I do not
know if you were here, but I almost feel like I should for sure turn
this over to you because I have already stated my prejudice on the
record about this nominee. She is a friend of about 20 years now,
and I think she is the best thing since sliced bread. [Laughter.]
So I will let you ask whatever questions you might have.
Senator Simpson. Well, what are friends for?
Senator Moseley-Braun. Hey, that is my attitude. Oh, yes, I do
not know. Do you have family introductions or friends who are here
with you today?
TESTIMONY OF NANCY E. GIST, BOSTON, MA, TO BE DIRECTOR
OF THE BUREAU OF JUSTICE ASSISTANCE
Ms. Gist. I do not. I do not have an opening statement either,
but I would like to just take a minute and state to you how hon-
ored I am to be here, to have been nominated by the President, to
have the confidence of Attorney General, and I will be happy to an-
swer any questions either of you may have.
Senator Moseley-Braun. All right. We will let Senator Simpson.
QUESTIONING BY SENATOR SIMPSON
Senator Simpson. Well, thank you, Madam Chairwoman. I have
looked at your record here, your work and your academic experi-
ence and law school experiences and the fact that you were deputy
chief counsel of the Committee for Public Counsel Services in Bos-
ton and then Midwest Legal Services, and you certainly have a re-
markable record, and you probably worked to help get this woman
elected, too, did you not?
Ms. Gist. As it happened, Senator, I was prohibited from engag-
ing in that type of activity by State law in Massachusetts.
Senator Simpson. That is good. [Laughter.]
382
Senator Moseley-Braun. I could not bring her home to Illinois
so she could vote. I mean it is terrible.
Senator Simpson. Well, that is what this is about. Administra-
tions change and then Presidents have their right to select the peo-
ple they want to have them assist. Our job is to see that they
are qualified professionally and temperamentally, especially with
judges, and not to judge their ideological bent. That is nothing that
I like to get involved in. I certainly will examine into temperament
and background and so on, but I am sure that from what Senator
Carol Moseley-Braun has said about you, that you are, indeed,
highly capable and qualified. In my review you spent most of your
life and all of your working career in, again, major urban areas,
Detroit. I went to Cranbrook School in Detroit for 1 year. I was an
incorrigible and they sent me there for [Laughter.]
Ms. Gist. Really?
Senator Simpson. For kind of a charm school experience, and it
was really quite, I thought it was as far east as
Senator Moseley-Braun. It worked. It worked.
Senator Simpson. That was as far east as you could ever get
when I was in Detroit. It was a great experience, and Detroit was
certainly one of the great cities of the country in that time, and it
has had some difficulties in past times, and I see people working
hard in the new administration, with the new mayor, to bring De-
troit back to where it was as a superb city.
You have worked in the urban areas, and now you come to this
position of Director of the Bureau of Justice Assistance. Again, I do
not, I am provincial since I represent a very small State
populationwise, but we are not alone in our interest on rural areas
and rural interests with regard to justice. Do you think you can"
have that proper sensitivity, if you will, an overused word, for the
very real but different crime problems affecting rural areas? That
is rural areas in New York State or Michigan or up by Petoskey
or wherever. So that is my essential question.
Ms. Gist. Senator, my current responsibilities are statewide in
Massachusetts, and although maybe our rural areas are not quite
as rural as some parts of Wyoming, nonetheless there is quite a di-
versity of population centers throughout Massachusetts. I admit to
coming into the job with the assumption that the worst and most
violent crimes, and the worst problems were in the major urban
areas. I quickly learned that that is not the case, that, in fact, this
epidemic of crime and violence has infected every community in
this country regardless of size, suburban, urban, rural, etc.
When I met with Senator Grassley a few months ago, we dis-
cussed this subject, and I am aware of the feeling that, as Laurie
Robinson has indicated, enough has not been done, enough atten-
tion has not been given to rural areas because of the built-in as-
sumptions about where the real problems lie. If I am confirmed, I
am committed to making certain that our attention is expanded
into every community and that the BJA's resources are directed in
a manner that reflects the problems in every community in the
country.
I will say that clearly the BJA can do but so much with its lim-
ited discretionary funding. So the real issue, I think, is going to be
working in partnership with the States to make sure that the alio-
383
cation of the formula funding is done with more sensitivity to the
rural areas.
Senator Simpson. Of course, under the crime bill, if we get that
resolved, would be tremendous funding mechanisms. I think one of
the things that is being resolved that I share with my colleague is
that the money will go out in the form of block grants where people
can do with the moneys as they choose, such as the remarkable
proposal of my colleague, which was in regard to a night-time ac-
tivity, midnight basketball. That to me is something very impor-
tant. Athletics helped save me from the primrose path to some de-
gree, and basketball particularly.
So I think that is very good, and I think we are going to do that
in a way where we get block grants out, and then you do with it
what is best in your community instead of having the Attorney
General just parcel it out and say, "here is this for you, and this
for you, and I hope we can resolve that." But as organized crime
and the drug trade see themselves under greater surveillance in
the urban areas, they have learned very well how to use the rural
areas for their activity. Would you concur with that?
Ms. Gist. I would. I was recently contacted by the court in west-
ern Massachusetts in a very small town in the Berkshire Moun-
tains and was informed that there was a huge influx from New
York City of what are known as mules, persons carrying and sell-
ing drugs in relatively small amounts, that was putting a tremen-
dous stress on their county jail out there and on their courts. In-
creasingly, as you point out, this is happening. I am well aware of
it, and I am certain that if I am confirmed we will see to it that
the BJA pays careful attention to the problems in those areas.
Senator Simpson. One final question, Ms. Gist. In the course of,
again, the crime bill debate, how topical it is to us, we have heard
a lot of discussion about the relative merits of various approaches
to controlling the national epidemic of violent crime. Do you think
the funding of prevention efforts really make the greater difference,
in your mind, do we need more police, prosecutors, and prisons?
What is your view on that?
Ms. Gist. Senator, I think we can always do more for law en-
forcement, but I also think there is a role for prevention programs
for attempting to prevent crime in the first place, and I think that
one of the reasons that there has been such tremendous support in
the law enforcement community for the crime bill is that tnere is
perceived to be a balance between funding of police, punishment,
and prevention. To the extent that there are programs con-
templated which will keep young people off the streets, involve
them in positive activities where they have an opportunity to inter-
act positively with law enforcement personnel. For instance, in
some of the basketball leagues, many of which are sponsored by po-
lice departments across the country, where they can be involved in
structured activities, possibly learn some job skills and that type
of thing.
All of that is to the better. On the other side of that is the per-
ception, perception being reality. I know in my neighborhood when
there are groups of young men standing around, people feel less se-
cure. When the kids are off playing ball or whatever and the
streets are not clogged with young people standing around with
384
nothing to do, there is a perception that people are going to feel
safer in the same way an increased police presence contributes to
the perception that people are going to be safer. So I would suggest
that a balance between prevention and punishment and police is
appropriate. There is a role for every good idea that we can come
up with to try to wrestle with this problem and get it under con-
trol, and I think that although there is a tremendous need at all
times for all the support that we can possibly give to law enforce-
ment, there is a role for prevention as well.
Senator Simpson. I thank you. There was one phrase, two words
you used, "job training." But I have been here for 15 years, and we
now have 154 job training programs spread through the bureauc-
racy, costing $25 billion, and they do not work. Senator Kennedy,
Senator Kassebaum, and Secretary Robert Reich are trying to work
toward some kind of consolidation because that is just something
we use. It is a key word. You just say "job training" and you go
vote automatically, but they do not work. And as I say, 154, taking
$24.5 billion, and. we do not see them having an effect. I know it
is not in your area, but it is something in the area of a bipartisan
approach, as to how we consolidate these? What do we do? Thank
you very much.
Ms. Gist. Thank you, Senator.
QUESTIONING BY SENATOR MOSELEY-BRAUN
Senator Moseley-Braun. Ms. Gist, being since I have already
stated our friendship for the record, I get to ask you the hard ques-
tions.
Ms. Gist. I might have guessed.
Senator Moseley-Braun. I mean that is what friends are for,
right, to ask the hard questions?
Senator Simpson. I want to see those.
Senator Moseley-Braun. No, well, you know, actually I do have
one. [Laughter.]
Just one question. I think it is an important one, though, to ex-
plore on the record and to have your public responses to because
your background over the years has been in legal services and in
frankly fighting the forces of power in behalf of the little guy, but
at the same time you are coming into a job that is part and parcel,
a major part, of the law enforcement community, and that commu-
nity has expressed, as you are no doubt aware, no small amount
of anxiety around whether or not you will be able to develop the
relationships and to actually listen and be able to hear what local
law enforcement has to say about these issues.
So my question to you would be, what can you, for the record,
state in terms of your approach to the development of the relation-
ships toward assuring local law enforcement professionals that you
are going to be, that you are committed to aggressive law enforce-
ment, committed to listening to them, to taking their input, to de-
veloping again the kind of working relationship with the people
who have been on the other side of the bench, if you will, all these
years?
Ms. Gist. Thank you for asking the inevitable question. I was
asked this same question albeit somewhat more pointedly when I
met with a group of about a dozen representatives of police organi-
385
zations a few months ago. I will tell you what I told them. I have
spent 10 years in the criminal justice system in Massachusetts. I
have a real sensitivity to BJA consumers, to the people who will
be consuming BJA services because these have been my colleagues
throughout my 10 years in the criminal justice system in Massa-
chusetts.
I am absolutely committed to the principle that every American
citizen is entitled to competent legal representation, and I am very
proud of the work that I have done, that my agency has done over
the past years to contribute to a more smoothly functioning crimi-
nal justice system. However, that does not mean for one moment
that I am not every bit as frustrated and angry as anyone else
about this epidemic of violence, that I am not as interested in feel-
ing secure in my home and on my street as anyone else, and that
I am not only unusually sensitive, but in any case, extremely sen-
sitive to the fact that my community, my neighborhood, and my
block are in many ways disproportionately affected by what is
going on in this country today.
My role in Massachusetts has required me to develop very good
working relationships with criminal justice practitioners from
across the system, from law enforcement, through the court system,
the prosecution as well as the corrections and probation end of
things. I have no reason to believe that I would have any difficulty
establishing similar relationships and partnerships with every as-
pect of the criminal justice system if I am confirmed as director of
the BJA. I view this opportunity, if I am confirmed to serve as di-
rector, as an extraordinary one to work with this administration,
the President, the Attorney General, the Congress, the law enforce-
ment community on trying to come to grips with this problem. I
bring a tremendous amount of energy. I bring experience in the
criminal justice system and a determination that the young people
who are at risk in this society somehow get turned around, that
citizens be able to feel secure on the streets and in their homes,
and that if there is any role that I can play, I bring a lot to it, and
I believe that I will be able to accomplish here what I was able to
accomplish in Massachusetts in terms of working in partnership
with people who are trying to get together, who need to be sitting
down together rather than working in a sort of adversarial way, all
coming together to try to bring everything we all have to bear to
address this problem.
Senator Moseley-Braun. All right. Thank you very much. I have
no further questions, Ms. Gist. Thank you very much for your par-
ticipation.
Ms. Gist. Thank you, Madam Chair, Senator.
Senator Moseley-Braun. Thank you.
The next nominee is Jan Chaiken, who has been nominated for
the Bureau of Justice Statistics. Mr. Chaiken, do you swear that
the testimony you shall give in this proceeding will be the truth,
the whole truth and nothing but the truth, so help you God?
Mr. Chaiken. I do.
Senator Moseley-Braun. Thank you. Mr. Chaiken, if there are
any of your family members here today, you will introduce them to
us at this point.
386
TESTIMONY OF JAN M. CHAIKEN, LINCOLN, MA, TO BE
DIRECTOR OF THE BUREAU OF JUSTICE STATISTICS
Mr. Chaiken. I would like to introduce my wife Marcia. Marcia
has been my colleague in a lot of the research that I have done
over the last years, and I dare say that the best research that I
have done has been jointly with her. We have a close family friend,
Nina Golden, whose home is in California, and we have known her
since we lived there. She recently received her law degree, and in
this room there are a lot of people that she can emulate in her fu-
ture career.
Senator Moseley-Braun. Congratulations. All right. Dr.
Chaiken, Senator Simpson, would you like to start?
QUESTIONING BY SENATOR SIMPSON
Senator Simpson. I would, Madam Chairwoman, if I may. Dr.
Chaiken, again, I have reviewed your material, your work at Cam-
bridge, and is that Abt Associates?
Mr. Chaiken. Yes, it is.
Senator Simpson. Abt Associates is under contract with the Bu-
reau of Justice Statistics, and you have written extensively, and co-
authored various articles. That is an impressive array of material.
I would ask, are there ways to improve the timeliness and useful-
ness of factual information needed by or of interest to Senators and
their staffs about the operations of criminal justice agencies or
other statistics that are available at the Bureau of Justice Statis-
tics but perhaps are not widely known? I think that my colleague
would share with me that the press of time in this place and the
just metric tons of stuff that come to us, and they do little good be-
cause they just stack up, and somebody must read them, perhaps
the staff, and yet our staffs, members of our staff are stretched be-
yond their endurance. How do we improve the timeliness and use-
fulness of things for our purposes? Do you have any thoughts on
that? That is very broad and loose.
Mr. Chaiken. Yes, thank you, Senator. This is an area that has
concerned me, and certainly statistics agencies put out annually
large quantities of paper which are difficult to consume at the mo-
ment that the information is needed. Now on the staffs of the Sen-
ate and House committees, especially this committee, you have peo-
ple who are very well trained in criminal justice issues and ask for
the right information and know how to use it if they can get it. If
confirmed, I am committed to improving the electronic access to the
most up to date information that is available and to preparing
briefings and other information for congressional staff people who
may need to be informed about forthcoming issues.
So I would like to focus on the users of the information and less
on public just being content to make sure that pieces of paper have
arrived on the desks of staffers.
Senator Simpson. Dr. Chaiken, as Director of the Bureau of Jus-
tice Statistics — and this is not directed at this administration, as
I say it is from my experience and observation since 1979 — how
will you handle pressure from the Attorney General or the White
House regarding the timing or content of reports about crime rates,
prison populations, or other statistical topics which may be of cur-
rent political interest?
387
Mr. Chaiken. Well, Senator, I am quite familiar over the years
with the staff of the Bureau of Justice Statistics, and there is a
very professional staff there that is deeply concerned about this
issue and their independence from fads either of a research nature
or of a political nature that might influence the kinds of statistics
that are generated. My understanding is that the Bureau of Justice
Statistics has complete control over its statistical publications, the
content of them, and the timing of their release.
I would certainly insist on that degree of independence because
the Nation's respect for its crime statistics rests in part on believ-
ing that they are impartial and professionally prepared and not
subject to the winds of political or current developments. I do, I
have heard and I do understand that in regard to press releases
that accompany release of statistical information, that those are
prepared by an office at the Office of Justice Programs and are co-
ordinated with the Justice Department, and the statistics are re-
leased to the press in the name of the Justice Department which
I think is a good development rather than to try to isolate that
they come from the Bureau of Justice Statistics or some other
place.
However, to the extent that there are any influences in regard
to the press release process, I believe the director still has the au-
thority to release the statistical report and to maintain complete
control over its content without outside interference, and we appre-
ciate the fact that this position is a Presidential appointment sub-
ject to Senate confirmation because it does give the crime statistics
of this country a stamp of approval by more than just the current
administration.
Senator Simpson. My experience and observation is as yours,
that these are fine professional people in this area who really do
their work without the feeling of political impact. But once they
finish, it does get a little shaded, and it is holding something back
or putting a spin on it in some way that was not the effort of those
who had worked so hard on it. It is a strange community. If you
really are looking for statistics that will support your case, you will
find them in Washington, DC. You just keep shopping until you get
the independent contractor or the agency that will give you the sta-
tistics you are seeking, and it is a noble thing to watch, disturbing
but noble. But I wish you well, and I think you will, from every-
thing I see, do it with a high degree of professionalism, and you
certainly have an impressive background. Thank you, Madam
Chairman.
Mr. Chaiken. Thank you, Senator.
QUESTIONING BY SENATOR MOSELEY-BRAUN
Senator Moseley-Braun. Thank you very much, Mr. Senator.
You know I do not know who it was, and I am going to look this
up, the quote, "Lies, damn lies and statistics." I do not know who
made that up, but
Senator Simpson. Yes, who was that?
Senator Moseley-Braun [continuing]. We are all aware of the
notion that obviously it is the integrity of the information that is
so critical. And Senator Simpson in his question got to the issue
of the integrity of the information that this bureau will dissemi-
388
nate. So I have kind of a series of questions, actually it is one ques-
tion, but there is a series of issues that the question raises, and
that for me is exactly how do you plan, what is your vision for en-
suring the integrity, the accuracy, and the timeliness of the infor-
mation that the bureau collects and disseminates? We have seen
right now the bureau contracts a large part of its work from the
Census Bureau, and yet we have seen in recent times census find-
ings thrown out for undercounting minority populations and the
like.
I mean a court recently in Illinois — it was in Illinois; right? Well,
in any event, in Illinois there was a recent decision having to do
with the census undercount, and so the census figures have been
challenged. Yet a lot of what the bureau does is dependent on those
now challenged numbers. That also gets to the fact that very often
the local governments, and again I am speaking specifically about
local law enforcement because my coming up through State and
local government I have more dealings with local law enforcement,
and it is not infrequent or uncommon to hear from local law en-
forcement people that, you know, where are these guys getting
their numbers from? Mars or what? This does not reflect the reality
that we are dealing with. They did not even ask for our numbers.
This happens a lot.
So my question to you becomes, then, one, how do you plan on
coordinating or consulting with the locals in pursuit of direct
sources of information? How do you see, what steps do you see nec-
essary to ensure the integrity of the information that you compile,
that this bureau will compile? How do you foresee taking advan-
tage of, consulting with, coordinating with other agencies of the
Federal Government? So you are talking two ways, both local up
and down, and then across, and then finally to disseminate the in-
formation to us. I mean in this time of the information super-
highway, hopefully there will be more and more opportunities for
us to be able to access directly the information that you have. And
so I know that is a lot of questions, but they are all kind of iter-
ations on the same issue, the information gathering process, how
do you see that, and what changes, if any, you will undertake with
regard to that, and then with regard to disseminating information
to us, what is your vision in that regard?
Mr. Chaiken. Well, you are correct that the Bureau of Justice
Statistics undertakes some data collection efforts on its own or
with interagency agreements with the Census Bureau. In addition,
however, there are Federal, State and local agencies that are data
collection and statistics agencies. So going back, as far back as the
1930's, the FBI has been collecting data directly from local law en-
forcement agencies about the extent of crime that is known to
them, known to the police agencies, and at the same time for about
20 years or more, the Bureau of Justice Statistics has been collect-
ing information from the victims of crime.
One of my goals, if I am confirmed, is to make a greater effort
of an analytical nature to bring these disparate sources of informa-
tion together and to study them and to see what are the overall im-
plications, not to pay special attention to a data source just because
the Bureau of Justice Statistics has collected that particular data,
but rather to bring, to assemble together from State and local and
389
other places where similar data are provided, and to analyze it to-
gether and to come to the best overall impression of what the data
means. So I will be committed to that. Would you like me to inter-
rupt for Representative Markey?
Senator Moseley-Braun. Well, I understand Representative
Markey just came in, and we are delighted to have him. I know
how busy he is on the House side and how long it takes to get from
one side of this building to the other. Welcome, Representative
Markey.
Mr. Markey. Thank you.
Senator Moseley-Braun. Representative Markey, you should
know that Mr. Chaiken has already started and is comporting him-
self very well, but we would love to have your introduction at this
point. Come join us.
STATEMENT OF HON. EDWARD J. MARKEY, A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF MASSACHUSETTS
Representative Markey. Thank you, Madam Chairman, Senator.
Senator Simpson. How do you do, Ed?
Representative Markey. Very well, thank you. You have an ex-
traordinarily well qualified candidate before you today, and I ap-
preciate this opportunity to speak on behalf of this widely re-
spected researcher in the criminal justice field who I am confident
will be an exemplary director of the Bureau of Justice Statistics.
As negotiations over this crime bill continue, President Clinton and
this administration have added an experienced analyst to the law
enforcement team. Dr. Chaiken currently is a special assistant to
the Assistant Attorney General for Justice Programs after serving
most recently as director of the Federal Justice Statistics Project
at Abt Associates in Cambridge up in Massachusetts.
He has published important studies on the relationship between
drug use and crime and designed an innovative software package
for police car allocation which is used by law enforcement agencies
around the U.S. and abroad. His research has focused on develop-
ing and applying methods for improving operations of criminal jus-
tice agencies. He has worked on criminal justice policy with the
California Corrections Department, the Kings County district attor-
ney's office in Brooklyn, the Los Angeles sheriffs department and
the Massachusetts Committee on Criminal Justice. He has also
taught mathematics at Cornell, MIT, and UCLA.
Dr. Chaiken's family, which is, I am sure, very proud of him
today, also is established as an academic powerhouse. Jan has pub-
lished his best-known works with his wife, Dr. Marcia Chaiken,
and both of their children have also completed their doctorates so
without question it is a family tradition of commitment to excel-
lence in the development of the kinds of information which Dr.
Chaiken will be responsible for in the Federal Government, and I
wholeheartedly endorse his candidacy and hope that the committee
would see fit to give him a speedy confirmation. Thank you.
Senator Moseley-Braun. Thank you very much, Representative
Markey, and again thank you so much for taking time out of your
busy day to come over and join us this morning.
Senator Simpson. Congressman Markey, how are things going
over there? [Laughter.]
390
You can tell us, Ed. There is no one here.
Representative Markey. Funny. We were just talking about you
this morning. [Laughter.]
Your name is quite prominently mentioned, and if I could give
you a blow-by-blow description of the Democratic Caucus, which I
just left, which moves between the important subjects of the crime
bill, the health care bill, and when we are getting out for vacation
in an almost ongoing and impossible to completely analyze political
EST session, which gives some sustenance for the continuation of
activity for the rest of the day, but I do not think sufficient to obvi-
ate the need for us to do the same thing tomorrow morning to give
us motivation to continue in the present environment.
We enjoy the opportunity to try to understand the internal work-
ings of the Senate, as you
Senator Simpson. Madam Chairwoman, I met Congressman Mar-
key when I came here. We started off on a rocky note back in 1979
or 1980 and since then, like it always is the case, you get to know
someone, work with them, and he is a superb gentleman, and I
enjoy him very much, and we have had some very interesting
times, and we both severely overmarried. [Laughter.]
Representative Markey. We married up. No question.
Senator Simpson. We married up very much.
Senator Moseley-Braun. Well, Senator Simpson, I must tell you
I am looking forward to learning the inner-workings of the Senate
as much as Representative Markey is. [Laughter.]
Senator Simpson. Well, if they do not mess with the filibuster,
we will not mess with their Rules Committee.
Senator Moseley-Braun. OK. Thank you very much. Represent-
ative, for joining us. Mr. Chaiken, I will be done just in 1 second.
I guess the last part of your response.
Mr. Chaiken. Actually I would like to address the first part of
your question about the Census Bureau.
Senator Moseley-Braun. Yes. Please understand before you do,
I do not mean to be overly critical of what is going on now. I just
wanted to raise the fact that these concerns have been expressed
regarding the integrity of the information, the process for gathering
it, and the like.
Mr. Chaiken. It is true that the Census Bureau staff provide the
interviewing and data collection and initial data processing activi-
ties for the Justice Department's victimization survey. But it is not
the same sampling methods or interviewing methods that are used
for the decennial census. The work of the people at the Census Bu-
reau is under close observation by a distinguished advisory group
which is assembled by the American Statistical Association, and
they use in-person interviews and random digit dialing methods
and computerized interviewing techniques which are not yet part
of the regular census that is counting people. So it is a very quali-
fied staff, but they are not following the same procedures that have
led to the difficulties that you have indicated are emerging in some
court cases regarding the census count.
The victimization survey numbers are in no way dependent on
what the decennial census numbers are for the same localities.
They are a separate operation. Now I certainly intend, if confirmed,
to look carefully into all those procedures and I cannot tell you that
391
they are perfect as they stand, but they do have the respect of the
criminal justice research community.
I would also like to mention that my family, when we lived in
Los Angeles, was selected in the sample for the victimization sur-
vey. So we have personally experienced the interviewer from the
Census Bureau coming to our home twice a year and asking us em-
barrassing questions.
Senator Moseley-Braun. That really is extraordinary. I have yet
to meet anyone who has been surveyed under the Nielsen ratings,
for example. One last question which again was the second part of
the question, and I may have used too many words, but that was
the question of disseminating information to us here in the Con-
gress and taking advantage of Internet or whatever computer or
electronic information transmission opportunities may exist to get
us information. We were working on an issue having to do with
State prisoners and the information available to staff was based on
a 1991 survey. I have got to believe that in some of these instances,
not all certainly, but some, there is more current data that if given
an opportunity to access it, the staffs would be able to, and that
would help us do our job.
Mr. Chaiken. Well, I already did mention this in answer to the
question from Senator Simpson, but to emphasize, if confirmed,
this is going to be one of my highest priorities, to get the Justice
statistics system into readily available, user-friendly, electronic
form. Some of the time delays that you mentioned are inevitable
in terms of if a survey is fielded in all the Nation's prisons, you
can imagine it takes awhile to accomplish that and to generate the
numbers. But in terms of Senate staffers or a Governor's staff or
police agency staff having rapid access to whatever is the latest in-
formation in a form that they can understand and download rap-
idly, I am strongly committed to accomplishing that.
Senator Moseley-Braun. All right. Thank you again very much,
Dr. Chaiken.
Senator Simpson. Thank you very much.
Senator Moseley-Braun. Thank you.
Our next nominee is Jeremy Travis to be Director of the National
Institute of Justice. Mr. Travis, raise your right hand, please.
Thank you. Do you swear that the testimony you will give in this
proceeding shall be the truth, the whole truth, and nothing but the
truth, so help you God?
Mr. Travis. I do.
Senator Moseley-Braun. Mr. Travis, if there are members of
your family or friends here with you today, would you introduce
them at this time?
TESTIMONY OF JEREMY TRAVIS, NEW YORK, NY, TO BE
DIRECTOR OF THE NATIONAL INSTITUTE OF JUSTICE
Mr. Travis. Yes, my wife Susan Herman is here, who was al-
ready introduced by Senator D'Amato.
Senator Moseley-Braun. All right. Senator Simpson.
QUESTIONING BY SENATOR SIMPSON
Senator Simpson. Thank you very much, Madam Chairwoman. I
have read, of course, the material with regard to you, sir, and
392
noted that you served as clerk for a year with Ruth Bader Gins-
burg, and, of course, she was well received by this committee and
is now serving on our U.S. Supreme Court. And that you also were
heavily involved with our old friend, Ed Koch.
Mr. Travis. That is true.
Senator Simpson. He is a great fellow. I met him when I first
came here and always enjoyed his spirit and energy, and please
communicate my high regard to him when you see him.
Mr. Travis. I shall do that.
Senator Simpson. Did you actually write a speech or two for
him?
Mr. Travis. I wrote the speech. Whether he gave the speech that
I wrote is a separate question. [Laughter.]
Senator Simpson. My hunch is that he did not and went off with
his own vigor, as he does, but I have always admired him. The NIJ
was created to be independent from political influence, to be an
independent research arm of both the Justice Department and
State and local law enforcement entities. Would you ever be in a
position to edit or not publish a report that would be critical of this
administration, or this Justice Department?
Mr. Travis. Senator, in preparing for this hearing and in learn-
ing about the National Institute of Justice, I have been impressed
by the care and attention that the Congress has paid to establish-
ing an independent entity to carry out the mission of answering the
question what works in the field of criminal justice reform and in-
novation. As Jan Chaiken mentioned in his statement, the fact that
the directors of our two agencies, and in particular our separate
Presidential appointments subject to confirmation by the Senate,
sends a very important message to us and I think to the larger
public that our work is to be viewed as objective and as non-
partisan and as independent. Nowhere is this more important than
in the publication of research findings. I am personally committed
through my career at the Vera Institute of Justice and as an offi-
cial of local law enforcement and criminal justice to letting the
truth come out. These are very important issues that we are wres-
tling with as a society, and it is important that the public and the
practitioners know the answers to the question what works. NIJ
has a unique role to play in that, and I am committed to protecting
the independence of the research product and the integrity of the
agency.
Senator Simpson. How would you respond if a political appointee
in the Justice Department requested that you edit or not publish
a report that is critical of this administration, or this Justice De-
partment?
Mr. Travis. Well, I would begin by talking about the importance
of the question that is being asked and answered in the report, and
the importance of having research findings that are credible and
that are respected by the public and talk about the unique mission
that has been given to the National Institute of Justice by Con-
gress to be independent and to produce and publish independent
findings. Ultimately, I think the larger objective is for the Amer-
ican people to be guided by research findings in developing crime
control policy. So I would make a very strong statement about the
value of the research, the value of the independent findings, and
393
the importance of disseminating the information to the public at
large.
Senator Simpson. I understand that, but would you not just tell
them to get out?
Mr. Travis. I think we have to first attempt to persuade and
then ultimately the answer is that the research has to be pub-
lished. I think that is the ultimate answer.
Senator Simpson. Well, I think that is the first answer, I respect-
fully say.
Mr. Travis. Right.
Senator Simpson. The others are, I think, things that get people
in trouble in Washington. The first answer is I did that work.
Mr. Travis. Right.
Senator Simpson. It is credible work, and you are not going to
do that to me.
Mr. Travis. Right.
Senator Simpson. That is me. That is my name on there. You
cannot do it.
Mr. Travis. Right.
Senator Simpson. So I think that is very important because I
have seen enough, and so have you, as to what happens in this
community with equivocation, and it does not matter what admin-
istration. Just step up to the plate. There is a great deal more re-
spect for people who do that, even if they are wrong, at least with
energy and a sense of the Tightness of things, and you will find this
happening. This will happen to you, and I think at that time you
just say, hell, no. That would be a good response and get you a lot
further in Washington when somebody is trying to do that in some
way.
But I just have one final question. You have been deeply involved
in community policing efforts and have an extraordinary record in
that. That is the thing we are talking about now in the crime bill.
How does community policing, which gets criticism from some
sources, how does that really differ from traditional policing? How
is it better, and do you see a role for the NIJ in advancing commu-
nity policing efforts?
Mr. Travis. Senator, I have been involved, am fortunate to have
been involved in the past 10 years in the New York City police de-
partment and New York City government as we have been strug-
gling to adopt a community policing philosophy within our depart-
ment. Other agencies throughout the country have been doing the
same. Chicago, in fact, is another police department that is under-
going the same transformation. I think that community policing
holds great promise for this country as a smarter way and a more
effective way to deliver police services.
The ultimate test will be in part in the ability of police agencies
to reduce crime. I think a quick definition, and pages and pages
have been written on the topic, but a quick definition that I find
helpful is to think of community policing as the police and commu-
nity working together to jointly identify problems of crime and dis-
order, jointly develop strategies to address those problems, and
jointly assess the effectiveness of those strategies. So it is different
from traditional policing in that the police are working in close
partnership with the community, less in a reactive mode, more in
394
a partnership and proactive and ultimately problem-solving mode
to identify and solve problems.
Let me give you one just quick example from my personal experi-
ence in New York City that I think makes the point. There is a
building, a large building on West 165th Street in northern Man-
hattan that has about 200 units. It has been plagued by a drug
problem in about 10 or 15 percent of the apartments in that build-
ing. A traditional police response would involve making arrests,
getting search warrants and prosecuting those cases. Under a com-
munity policing philosophy we sat down with the residents of that
building, developed more intelligence about what was happening
there, and ultimately developed a case to federally forfeit the build-
ing in court working with the U.S. Attorney's Office and put the
entire building in receivership, in essence, with the U.S. Marshal
Service, and put in place a more effective management company
that was able to reduce the level of crime and disorder within that
building. That is a problem-solving, results-oriented approach that
I think lies at the core of community policing.
Senator Simpson. Thank you very much. Appreciate that. Thank
you, Madam Chairwoman.
QUESTIONING BY SENATOR MOSELEY-BRAUN
Senator Moseley-Braun. Thank you, Senator Simpson. Senator
Simpson actually has asked a couple of the questions that I wanted
to raise with you, but I wanted to ask you in particular with regard
to the pending crime bill, I think one of the reasons why it has
been such a difficult task to get consensus around here around the
crime bill is that it really does reflect kind of a watershed develop-
ment, in my opinion, in recognizing the value of prevention as
much as punishment in the administration of the criminal justice
system. This is the first time we have had both of these approaches
in a single piece of legislation. Some say that that is the problem
with the legislation. There are others who I think see some real
value in moving in that direction.
But my question to you has to do with the analyses that are out
there regarding the value of prevention services versus again the
traditional incarceration, lock them up, throw away the key kind
of approaches. I mean it does not, it seems to me, take a rocket sci-
entist to figure out that if you spend $3,000 on a kid at midnight
basketball then you might possibly save $30,000 for that same kid
incarcerated for incarceration expenses, not to mention the costs
associated with victimization to get there. Yet there is precious lit-
tle work in regards to the economic impacts of our spending in
criminal justice. That is to say where we can spend money to get
the better bang for the buck, where it makes sense to economize,
where it makes sense to direct dollars based on empirical data in
terms of research, and my question to you would be do you see
value in promoting that kind of work, promoting that kind of re-
search and sharing information such as may come out of it with
the Congress?
Mr. Travis. Absolutely. One of the program goals of the National
Institute of Justice in addition to examining violent crime and ex-
amining drug-related crime and disseminating information and
technology, one of the specific program goals is to look at crime pre-
395
vention and to conduct research in this area. So I think the at-
tempt in the crime bill to balance prevention with some of the more
traditional law enforcement approaches is a commendable one, and
within the research agenda of the National Institute of Justice,
crime prevention and the role of communities in reducing levels of
crime and disorder is a recognized objective.
If confirmed, this is an area that I am particularly interested in,
in placing a priority on, learning more, disseminating more infor-
mation about prevention programs that are effective.
Senator Moseley-Braun. Thank you. Thank you very much, and
I very much appreciate that approach because I think that is kind
of the new frontier that we need to move into. Senator Brown was
just here. Is he not going to ask questions?
Senator Simpson. I think he went to the other meetings. He
came here instead of the other meeting. [Laughter.]
Senator Moseley-Braun. OK.
Senator Simpson. Judiciary is meeting in three locations today.
Senator Moseley-Braun. Oh, are we. I did not realize that.
Senator Simpson. Three different subcommittees. Thank you.
Senator Moseley-Braun. All right. Well, thank you very much,
and I have no further questions of Mr. Travis.
Senator Simpson. Nor do I.
Senator Moseley-Braun. To all the nominees and the families,
again, thank you very much for your endurance, and we very much
look forward to having a speedy resolution of this issue. Obviously,
the record will remain open. Should Senators, members of the Judi-
ciary Committee or otherwise, have questions, they will put those
questions in writing, but we hope to move to a vote and to finalize
this matter as quickly as the process will allow. So, again, thank
you very much, Mr. Travis.
Senator Simpson. Thank you, Madam Chairwoman.
Senator Moseley-Braun. Thank you, all. The hearing is ad-
journed.
[Whereupon, at 11:25 a.m., the committee adjourned.]
[Submissions for the record follow:]
396
SUBMISSIONS FOR THE RECORD
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
Laurel (Laurie) Overby Robinson
2. Address: List current place of residence and office
address (es) .
Home: 5250 Watson St., N.W.
Washington, D.C. 20016
Office: U.S. Department of Justice
Office of the Deputy Attorney General
10th & Constitution Ave., N.W. - Room 4222
Washington, D.C. 20530
3. Date and Place of Birth.
July 7, 1946 - Washington, D.C.
4. Marital Status (include maiden name of wife, or husband's
name). List spouse's occupation, employer's name and
business address (es).
Married to Sheldon Krantz - Lawyer
Partner with the law firm of
Piper & Marbury (1200 - 19th St., N.W. , Washington,
D.C. 20036).
He also teaches as an Adjunct Law Professor at
American University's Washington College of Law
in Washington, D.C.
5. Education: List each college and law school you have
attended, including dates of attendance, degrees received,
and dates degrees were granted.
College: B.A. from Brown University, Providence, RI .
Attended 1964-68. Graduated 6/3/68. Magna Cum Laude.
6. Employment Record: List (by year) all business or
professional corporations, companies, firms, or other enter-
prises, partnerships, institutions, and organizations, non-
profit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or
employee since graduation from college.
A. August 23, 1993 to Present -
Associate Deputy Attorney General, and Acting Assistant
Attorney General for the Office of Justice Programs in
the U.S. Department of Justice.
397
-2-
B. 1979 to August, 1993 -
Served as Director of the American Bar Association's
Section of Criminal Justice (in Washington, D.C. office) .
From 1986 to August, 1993, I also simultaneously headed
the 80-person Professional Services Division in D.C.
(constituting roughly half the ABA's Washington Office).
C. 1972 - 1979 -
Served as Assistant Staff Director (1975 to 1979)
and Executive Assistant for Standards Implementation
(1972 to 1975) for the American Bar Association's Section
of Criminal Justice (in Washington, D.C. office).
D. 1972 -
Worked for several months for Potomac Temporaries
(Arlington, VA) to earn money between jobs
when I moved from New York City back to Washington, DC.
E. 1968 - 1971 -
Served as a reporter and desk editor for a New York
City, Ford Foundation-funded project to set up a wire
service to provide better news coverage for the City's
black and Puerto Rican communities (Community News
Service) .
7. Military Service; Have you had any military service? If so,
give particulars, including the dates, branch of service,
rank or rate, serial number and type of discharge received.
None.
8. Honors and Awards; List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
One of very limited number of recipients (September, 1992)
ABA Bonus for excellence as an Association employee.
Phi Beta Kappa.
Magna Cum Laude graduate from Brown University.
In high school - Valedictorian; recipient of
Virginia Statewide Latin championship; recipient
of Daughters of the American Revolution (DAR)
award for excellence in American History.
9. Bar Associations; List all bar associations, legal or
judicial-related committees or conferences of which you are
or have been a member and give the titles and dates of. any
offices which you have held in such groups.
398
-3-
I have been involved in the following:
American Bar Association Bar Executive Associate and
Criminal Justice Associate (1973 to present)
Institute of Judicial Administration member (1980
to 1991)
Advisory Board, Federal Sentencing Reporter (1990
to present)
National Committee on Community Corrections (1990 to
August 1993)
Chair, National Forum on Criminal Justice (1991 to
August, 1993)
Board of Regents, National College of District Attorneys
(1979 to August 1993) (Ex officio member)
Board of Regents, National College for Criminal Defense
(1979 to 1984) (Ex officio member)
American Bar Association representative to the National
Coalition for Jail Reform (1979 to 1984)
Board of Directors, National Association of Women in
Criminal Justice (1975 to 1983)
Board of the ACLU National Prison Project (1986 to
August 1993) .
Board of Directors, VALOR (Victim Assistance Legal
Organization) (1981 to 1991) .
Served as working member of ABA Criminal Justice Section
Committees on
- Drugs and the Criminal Justice System
(1990-1992)
- "State of Criminal Justice" Annual Report
(1991-1993)
10. Other Memberships; List all organizations to which you
belong that are active in lobbying before public bodies.
Please list all other organizations to which you belong.
Those involved in lobbying;
Common Cause (1990 to present).
American Bar Association (Criminal Justice Associate)
(1973 to present) .
Other:
Palisades Neighborhood Association (1992 to present) .
11. Court Admission: List all courts in which you have been
admitted to practice, with dates of admission and lapses
if any such memberships lapsed. Please explain the reason
for any lapse of membership. Give the same information for
administrative bodies which require special admission to
practice.
None.
399
-4-
12. Published Writings; List the titles, publishers, and dates
of books, articles, reports or other published material you
have written or edited. Please supply one copy of all
published material not readily available to the Committee.
Also, please supply a copy of all speeches by you on issues
involving constitutional law or legal policy. If there
were press reports about the speech, and they are readily
available to you, please supply them.
* "Moving the Criminal Justice Machine," State Government.
Vol. XLVI, No. 4 (August, 1973).
* "ABA Criminal Justice Standards Winning Nationwide
Acceptance," Criminal Defense, Vol. 1, No. 1 (Dec, 1973).
* "Throwing the Books at Criminal Lawyers - The ABA
Standards for Criminal Justice - What They Mean to Law Students,"
Student Lawyer, 2/75.
* "The ABA Standards for Criminal Justice: What They Mean to
the Criminal Defense Lawyer," Journal of Criminal Defense. Vol.
1, No. 1 (Spring, 1975) .
* "Women in the Criminal Justice System," Criminal Defense,
Vol. 3, No. 3 (May, 1976).
* "Our Grand Jury System Cries for Reform, Not Discard," San
Diego Union. 10/2/77, co-authored with Richard E. Gerstein.
* "Making the Grand Jury Fair," Litigation Magazine, Vol. 4,
No. 4 (1978) , co-authored with Richard E. Gerstein.
* "Remedy for the Grand Jury: Retain But Reform," ABA
Journal, March, 1978 (co-authored with Richard E. Gerstein).
* "Time to Act on Grand Jury Reforms," National Law Journal,
Feb. 4, 1980 (co-authored with Richard E. Gerstein).
* "Exclusionary Rule Changes Set," The National Law Journal.
August 10, 1981.
* "A Year of Crucial Change in the Law," The National Law
Journal." August 6, 1984.
* "Criminal Bar Feels Impact of New Act," The National Law
Journal. July 8, 1985.
* "Prison Policy," Federal Sentencing Reporter, Vol. 6, No.
4, January/ February 1993.
Section)
in
Vol.
1,
No.
1
Vol.
1,
No.
2
Vol.
1,
No.
3
Vol.
1,
No.
4
Vol.
2,
No.
2
Vol.
2,
No.
3
Vol.
3,
No.
2
400
-5-
* "Federal Legislative Developments" Column in Criminal
Justice Magazine (quarterly magazine of the ABA Criminal Justice
(co-authored with Tom C. Smith)
(co-authored with Tom C. Smith)
* "Section News" Column in Criminal Justice Magazine in
Vol. 3, No. 3
Vol. 6, No. 4.
* "Report to Members" Column, co-authored with Sheldon
Krantz, in Criminal Justice Magazine in
Vol. 4, No. 4
Vol. 5, No. 1
Vol. 5, No. 2.
* I also wrote numerous articles (non-bylined) for a wire
service, the Community News Service (long defunct) , in New York
City in 1970 and 1971. I do not have copies of these and do not
know how these would be obtained. I also wrote numerous news
articles and columns in college for the Pembroke Record and the
Brown Daily Herald. It would be virtually impossible, without
visiting the school (in Providence, RI) , to go through archives
of the Herald (the Record has been defunct for over 20 years) , to
find these articles.
SPEECHES:
* October 6, 1993 - Keynote address at Symposium on Drugs and
Community Corrections - Chicago, IL.
* October 27, 1993 - Panelist on Federal Criminal Justice
Priorities - 10th Annual Governor's Law Enforcement Forum -
Albany, NY.
* November 4, 1993 - Bureau of Justice Assistance Annual
Conference - Plenary Session - Panel on Drugs And Violence: Cross
Agency Perspectives on Federal Assistance to State and Local
Governments - Philadelphia, PA.
* November 12, 1993 - Keynote Address - National Association for
Court Management - Baltimore, MD.
* January 7, 1994 - Presentation - National Conference of State
Legislators - Judiciary Chairs Seminar - Denver, CO.
401
-6-
* January 20, 1994 - Presentation before Conference of U.S.
Attorneys - Washington, D.C.
* February 9, 1994 - Introductory remarks before National
Conference on Criminal History Records: Brady & Beyond -
Washington, D.C.
* March 7, 1994 - Presentation before a conference on Domestic
Violence - Los Angeles, CA.
13. Health; What is the present state of your health? List
the date of your last physical examination.
My health is excellent. My last physical examination was on
January 22, 1993.
14. Public Office; State (chronologically) any public offices
you have held, other than judicial offices, including the
terms of service and whether such positions were elected
or appointed, state (chronologically) any unsuccessful
candidacies for elective public office.
None.
15. Legal Career;
a. Describe chronologically your law practice and
experience after graduation from law school,
including:
1. whether you served as clerk to a judge, and,
if so, the name of the judge, the court,
and the dates of the period you were a clerk;
2. whether you practiced alone, and, if so, the
addresses and dates;
3. the dates, names and addresses of law firms or
offices, companies or governmental agencies with
which you have been connected, and the nature of
your connection with each;
b. 1. What has been the general character of your
law practice, dividing it into periods with dates
if its character has changed over the years?
2. Describe your typical former clients, and mention
the areas, if any, in which you have specialized.
c. l. Did you appear in court freguently, occasionally,
or not at all? If the freguency of your
appearances in court varied, describe each such
variance, giving dates.
402
-7-
2. What percentage of these appearances was in:
(a) federal courts;
(b) state courts of record;
(c) other courts.
3. What percentage of your litigation was:
(a) civil;
(b) criminal.
4. State the number of cases in courts of record
you tried to verdict or judgment (rather than
settled) , indicating whether you were sole
counsel, chief counsel or associate counsel.
5. What percentage of these trials was:
(a) jury;
(b) non-jury.
I am not a lawyer; therefore, this question is not applicable.
16. Litigation: Describe the ten most significant litigated
matters which you personally handled. Give the citations,
if the cases were reported, and the docket number and date
if unreported. Give a capsule summary of the substance of
each case. Identify the party or parties whom you
represented; describe in detail the nature of your
participation in the litigation and the final disposition
of the case. Also state as to each case:
(a) the date of representation;
(b) the name of the court and the name of the
judge or judges before whom the case was
litigated; and
(c) The individual name, addresses and telephone
numbers of co-counsel and of principal counsel
for each of the other parties.
I am not a member of the bar. The following are persons with
whom I have worked who know me and my qualifications:
Judge Patricia Wald
U.S. Court of Appeals for the
District of Columbia
Third & Constitution Ave., N.W.
Washington, D.C. 20001
202/273-0632
403
-8-
Newman Flanegin
Executive Director
National District Attorneys Association
1033 North Fairfax St.
Alexandria, VA 22314
703/549-9222
E. Michael McCann
District Attorney for Milwaukee County
821 West State Street
Milwaukee, WI 53233
414/278-4653
Judge Stephen Breyer
Chief Judge, First Circuit Court of Appeals
Mccormick Post Office & Courthouse
Boston, MA 02109
617/223-9014
Professor Sam Dash
Georgetown University Law Center
600 New Jersey Ave., N.W.
Washington, DC 20001
202/662-9070
Robbie Callaway
Assistant National Director, Boys & Girls Clubs
of America
611 Rockville Pike - Suite 230
Rockville, MD 20852
301/251-6676
Scott Harshbarger
Attorney General of the Commonwealth of Massachusetts
One Ashburton Place
Boston, MA 02108
617/727-2200
Chief Justice James G. Exum, Jr.
Supreme Court of North Carolina
P.O. Box 1841
Raleigh, NC 27602
919/733-3715
Dean Leo Romero
University of New Mexico Law School
1719 Stanford NE
Albuquerque, NM 87131
505/277-3017
404
-9-
John J. Curt in, Jr.
Former President, American Bar Association
150 Federal St.
Boston, MA 02110
617/951-8325
Justice William H. Erickson
Colorado Supreme Court
2 E. 14th Ave. - Room 465
Denver, CO 80203
303/837-3747
Marlene Young
Executive Director
National Organization for Victim Assistance
1757 Park Road, N.W.
Washington, DC 20010
202/232-6682
Chuck Wexler, Executive Director
Police Executive Research Forum (PERF)
2300 M St. , N.W.
Washington, DC 20037
202/466-7820
Professor Alfred Blumstein
School of Urban & Public Affairs
Carnegie-Mellon University
Hamburg Hall, Room 1104
5000 Forbes Ave.
Pittsburgh, PA 15213
412/578-2175
Richard H. Kuh
Attorney at Law
555 Fifth Avenue
New York, NY 10017
212/984-7830
Randolph N. Stone
University of Chicago Law School
6020 S. University Ave.
Chicago, IL 60637
312/702-9611
17. Legal Activities: Describe the most significant legal
activities you have pursued, including significant litiga-
tion which did not progress to trial or legal matters that
did not involve litigation. Describe the nature of 
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